I L REPORT
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JUDGE OF THE FIFTEENTH JUDICIAL CIRCUIT,
BEFOR~E THE SENATE,
COMPOSING THE HIGH COURT OF IMPEACHMENT OF
THE STATE OF MISSOURI.
REPORTED BY
THOMAS J. HENDERSON.
JEFFERSON CITY:
W. G. CHEENEY, PUBLC PRINTER.
1859.
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PREFACE.
The report contained in these pages is printed in pursuance
of a resolution which passed the Senate on the last day of the
session at which Judge JACIKSoN was tried, and which is as follows:
ResolveJc, That three thousand copies of the record, evidence; and
arguments of the Managers and Respondent in the case of the State of
Missouri against Albert Jackson, on articles of impeachment, be printed
in bourgeois and minion type; that Thomas J. Henderson be appointed
to superintend the printing of the same; and that the Committee on
Accounts be required to audit and allow the expenses thereof.
The matter of the whole volume has been carefully prepared
for press, and it is believed that a full, fair, and correct report is
presented to the reader.
The reporter is greatly indebted to Mr. GEORGE C.  STEDMAN,
the accomplished phonographer appointed by the Senate to assist
in reporting the trial, for his very valuable services. To Mr. S.
belongs the credit of the accurate reports of the concluding
speeches.
The work has been delayed beyond the time at which it was
expected to appear by a pressure of business, and other causes,
that prevented the Managers from revising the reports of their
speeches as speedily as could have been desired.
Judge JACKsON declined revising his speeches, and they are
therefore presented to the world with such corrections only as it
i;s customary for reporters to make.
~',":4                        8    1i*'f.)  08 8 
PREFACE.
Hoping that the several objects of this publication may be
fully attained, and especially that a reliable precedent for all
future cases of the kind may be afforded by it, the report is
respectfully submitted.
THOMAS J. HENDERSON.
CITY OF JEFFERSON-, Septembei 1, 1859.
iv 
RE C ORD.
IN HOUSE OF REPRESENTATIVES.
TUESDAY, January 11, 1859.
Petitions, memorials and bills being the order of business,
Mfr. MURPHY presented the following, which was read:
To the Honorable, the House of Reperesentatives of the State of Missouri:
The petition of Solomon G. Kitchen respectfully showeth: That, as a
citizen of the county of Stoddard, which is included in the Fifteenth
Judicial Circuit of the State of Missouri, he deems it his duty to bring
to the notice of your honorable body official misconduct and misdemeanors of Albert Jackson, as Judge of the Circuit Court of said circuit;
and to invoke such action upon the charges herein preferred, as to your
honorable body shall seem proper.
Your petitioner represents and charges, that the said Albert Jackson,
Judge as aforesaid, has, on divers occasions, and at sundry times, during
the last three years, while acting in his capacity as such Judge, been
guilty of misconduct and high misdemeanors in office: that is to say, of
willful and malicious oppression, partiality, corruption, and other abuse
of his authority and official position.
That the said Albert Jackson, Judge as aforesaid, has been guilty of
willful oppression, in refusing, without cause, and in violation of the
constitution and laws of the land, to persons accused of felony, a
speedy trial, in this, to wit: That at the October term, 1856, an indictment was pending in the Circuit Court of the county of Ripley, in said
Fifteenth Judicial Circuit, the said Albert Jackson there presiding,
against one      Harris, upon a charge of arson or burglary; and said
cause being called, both parties announced themselves ready for trial,
and a trial thereof was urged by said defendant; whereupon said court,
the said Albert Jackson being Judge, arbitrarily, without cause, and
oppressively to said defendant, refused to permit said trial to take place;
whereby, and in consequence of such refusal, the confinement of said
defendant was prolonged in jail, resulting, as your petitioner is informed
and believes, in the death of said defendant, by reason of such confinement, during an inclement winter.
Your petitioner further charges, that the said Albert Jackson, Judge
as aforesaid, has, as your petitioner is informed and believes, been guilty
of other and further acts of willful oppression, in this, to wit: That at
the November term, 1857, of the Circuit Court of Stoddard county, a prosecution was pending in said court, the said Albert Jackson presiding,
against one Sarah Buckner, charged with the crime of murder in the
first degree; that, upon the trial of said cause, two witnesses were in
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HOUSE PROCEEDINGS.
troduced by the State, and testified therein, (which was all the testimony
offered.,) when the said Judge, (court not being in session,) as your petitioner is informed and believes, advised the Circuit Attorney prosecute
img for the State on that:behalf to'-withdraw " the testimony of one of
such witnesses; that said Circuit Attorney accordingly asked leave of
said court to "withdraw" such testimony, which was granted, and said
court refused to permit counsel for said defendant to comment on the
same before the jury; that this evidence was competent, relevant, and
tended to mitigate the offense with which defendant was charged; that
said cause was tried, and defendant convicted of murder in the first
degree; that an appeal to the Supreme Court being granted, a bill of
exceptions was tendered to said Judge for his signature, omitting the
evidence of the witness aforesaid; that said Judge refused to sign such
bill of exceptions unless the evidence of such witness was included
thereii; and the same was accordingly made a part of such bill of exceptions.
Your petitioner further represents, that the said Albert Jackson,
Judge as aforesaid, has committed other and further acts of willful oppression and tyranny, in this, to wit: That at the May term, 1858, of
the Circuit Court of Stoddard county, the said Albert Jackson presiding, a writ of mandamus having been pieviously issued by said Judge
in vacation, directed to one Jonas Eaker, a Judge of ])istrict Court of
said county of Stoddard, returnable to that term of said court, and said
cause being called, said court was advised by counsel for said Eaker
that said writ had not been delivered to said Eaker, nor served upon
him, and that he was therefore not bound to make return or answer
thereto; and your petitioner states that, as counsel for said Eaker, it
was his duty to ascertain whether said writ of mandamus had been delivered or served upon defendant, and he avers that it had not been so,
delivered or served —a fact which said court well knew or might have
known by an inspection of the same, which had been returned into
court by the Sheriff, and was then in court; that said court, notwithstanding these facts, arbitrarily, oppressively to said defendant, and in
violation of the laws of the land, ordered an attachment to issue for his
body, caused him to be arrested, held in custocldy and restrained of his
liberty for the space of several hours, and finally released him only on
condition that he would surrender himself on the following day, and
make return to said writ, which hlie did accordingly.
Your petitioner further represents aid charges, that said Albert Jackson, Judge as aforesaid, has been guilty of official misconduct, abuse of
authority, and a usurpation of authority, in appearing in person before
grand juries, at sundry times and on various occasions, and urging them
to prefer bills of indictment in particular cases and against particular
persons, in this, to wit: That at the November term, 1858, of the Circuit
Court of Stoddard county, the said Albert Jackson, duringaid term of
court, and while the grand jury was in session, appeared before said
jury in their retirement, assumed to instruct, and did instruct, said jury
as to their duties, and did urge said grand jury to prefer bills of indictment against a citizen of Stoddard county and your petitioner.
And in this: That at the November term, ] 858, of the Butler Circuit
(Court, said Albert Jackson presiding, beifore the grand jury had retired,
the said Judge instructed them in open court, that certain citizens of
said county and your petitioner had been guilty of a violation of the
criminal laws, in a certain transaction to which hlie alluded, and that it
was their duty to prefer bills of indictment against them; that upon the
retirement of said jury the said Judge, as your petitioner is informed
und believe%, appeared before them in person, and there again urged
11
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HOUSE PROCEEDINGS.
said grand jury to prefer bills of indictment against said parties and
your petitioner.
Your petitioner further charges, that said Albert Jackson has been
guilty of official misconduct and misdemeanor in office, in this: That
when grand juries have had under investigation charges of official misconduct against the said Judge, he has appeared before them, and instructed them that it was not their duty, and they had no legal right, to
prefer an indictment against him; that is to say, that at the May term,
1858, of the Circuit Court of Butler county, the grand jury having, as
your petitioner is informed and believes, under investigation acts of
official misconduct of the said Albert Jackson, as Judge, he, the said
Judge, being advised thereof, appeared in person before said jury and
assumed to instruct, and did instruct, said grand jury touching their
duties, and prticutaary respecting his own case, then under investigation; that said jury in their retirement were instructed by said Judge
that they had no legal authority to prefer a bill of indictment against
him.
Your petitioner further represents, that the said Albert Jackson,
Judge as aforesaid, has, as such Judge, acted with partiality, corruptly
and in gross abuse of his authority and position, in this: That at the
special August term, 1858, of the Stoddard Circuit Court, the said Jackson presiding, a Circuit Attorney, pro tem., was appointed by said court
(in the absence of the Circuit Attorney) to represent the State, and
among other duties to advise and instruct the grand jury touching questions of law arising befobre them; that said grand jury had before them
the case of said Circuit Attorney, pro te.? charged with a felony, to wit,
a felonious assault, and they therefore requested said court to appoint
another person to act as Circuit Attorney in his stead; that said court,
well knowing the facts, (as your petitioner believes,) refused to make
the appointment; that said grand jury did prefer a bill of indictment
against said Circuit Attorney, pro ter., which he himself prepared; that
at the next (Novemb)er, 1858,) term of said Circuit Court, said Albert
Jackson presiding, the Circuit Attorney was again absent, and one D.
G. Hicks (the same who acted as such at the former term) was again
appointed by said court; that a motion was made at said term, by counsel for said Circuit Attorney, to quash said indictment against him,
which motion was by the court sustained, and no person was appointed;
by said court to represent the State, nor was the State represented in
that behalf; all which will more fully appear by a transcript of the
record in said cause, which is made a part of this memorial. Also, that
at the special August term, 1858, of the Stoddard Circuit Court, an indictment was then and there pending against certain citizens of said
county of Stoddard, and the said Albert Jackson, jointly, for a misdemeanor, to wit, gaming; that one of said parties having been put upon
his trial under said indictment, and the evidence being heard, said
court instructed said jury that they might retire and find a Special verdict as to the fact charged in the indictment, but refused to permit said
jury, and instructed them that they could not find the general issue;
that thereupon the Circuit Attorney, pro tern., entered a tnolle prosequi in
said cause; all which will more fully appear by a transcript of the
record in said cause, which is made a part of this memorial, and
marked A.
Your petitioner further represents and charges, that the said Albert
Jackson, Judge as aforesaid, has been guilty of other acts of official
misconduct as Judge, and has acted corruptly and with partiality, in
this: That at the November term, 1858, of the Stoddard Circuit Court,
the said Albert Jackson presiding, a certain cause was pending in said
court, wherein one Matthew 1. Mloore, of the county of Cape  Girar
7 
HOUSE PROCEEDINGS.
deau, was plaintiff, and one James Walker, of the county of Stoddard,
was defendant; that while said cause was so pending in said court, the
parties thereto conferred together with the purpose of effecting a compromise of the same; that while these conferences were going on, and
during said term of court, the said Albert Jackson privately advised
and counseled said defendant Walker against a compromise of said suit,
and gave him, said Walker, to understand, that upon a trial of said
cause he could obtain a verdict; whereupon the plaintiff in said cause,
being informed of these communications of the said Judge to said defendant, was compelled, in order that justice might be impartially administered, to take a change of venue to another circuit.
Your petitioner further represents and charges, that the said Albert
Jackson, Judge as aforesaid, has, as such Judge, acted corruptly, oppressively, and with partiality, in this: That at divers times, and on
various occasions, during the last three years, and, indeed, generally,
if not habitually, during such period, upon applications before him for
changes of venue, he has awarded them to counties and courts remote
and inconvenient to parties litigant, instead of awarding them, as was
his duty, and as the law of the land required, "to some court as convenient as may be to the opposite party."
Your petitioner states that the foregoing are a few only of the many
instances in which the said Albert Jackson has acted in his capacity as
Judge, as aforesaid, oppressively, corruptly, and with partiality.
Your petitioner, in conclusion, would respectfully ask at the hands
of your honorable body, that the rights of the citizens (which have
been outraged by the official misconduct herein alleged) may be vindicated, and the purity of the judiciary preserved, by an investigation
into the conduct of the said Albert Jackson, under the power conferred
upon you by the constitution; and your petitioner, as in duty bound,
will ever pray.
SOLOMON G. KITCHEN.
Mr. DARNES offered the following resolution, which was adopted:
Resolved by the House of Representatives, That the Committee on Judiciary be
instructed to inquire into the official conduct of Albert Jackson, Esq., Judge of
the Fifteenth Judicial Circuit of this State, and that said committee have full
power to send for persons and papers; and that they report to this House by
impeachment or otherwise.
WEDNESDAY, February 9, 1859.
Mr. KNOTT, on leave, from the Committee on the Judiciary, made a report in relation to the charges preferred against Albert Jackson, Judge
of the Fifteenth Judicial Circuit of this State, recommending the adoption of the following:
Articles exhibited by the House of Representatives of the State of J[issouri, in
the name of all the people of the State, against Albert Jackson, Judge of
the Fifteenth Judicial Circuit, in support of their Impeachment against him
for witlful and malicious oppression, partiality, misconduct, abuse of o.    cial authority, and other high crimes and misdemeanors.
ARTICLE I.  That, unmindful of the sacred obligation by which  he
stood bound to discharge the solemn duties of his office faithfully, impartially, and consistently with the dignity and importance of the trust
reposed in him, as Judge of the Fifteenth Judicial Circuit, in the State
a
8 
HOUSE PROCEEDINGS.
of Missouri, the said Albert Jackson, at a Circuit Court begun and held
at the town of Bloomfield, within and for the county of Stoddard, in
the State of Missouri, on the third Monday in May, A.  D.  1858,
(whereat the said Albert Jackson, by virtue of his office aforesaid, did
preside as Judge,) did willfully and maliciously conduct himself in a
manner highly oppressive and unjust to one Jonas Eaker, viz:
First. The said Albert Jackson, desiring to harrass and oppress the
said Jonas Eaker, did, at the Circuit Court aforesaid, whereat he, the said
Albert Jackson, presided as Judge, as afore.aid, cause an attachment to
issue against him, the said Eaker, as for a criminal contempt, because
said Eaker did not make return to a writ of mandamus, which writ had
never been delivered to said Eaker, but of which a copy had been
delivered to said Baker; by virtue of which attachment the said Jonas
Eaker was arrested and held in custody for several hours, and released
finally by said Albert Jackson, on condition that he, the said Jonas
Baker, should make return to the copy that had been delivered to him,
said Jackson well knowing that said writ had never been legally served
upon him, the said Eaker, and that he was not in contempt for not
answering thereto.
Second. In refusing to permit counsel for said Eaker to speak in his
behalf, when they proposed to show to the court that said writ of mandamus had never been properly delivered to, or served upon him.
Third. In peremptorily, and in an oppressive, angry and insulting
manner, ordering the counsel of said Eaker, to wit, Solomon G. Kitchen
and William G. Phelan, to shut their mouths and sit down, when they, in
behalf of their said client, attempted to suggest an insufficiency  in the
service of said writ of mandamus.
Fourth. In depriving said Jonas Baker of the benefit of counsel, and
of the privilege of speaking through such counsel in his own defense,
as he had a lawful right to.
ART. II. That said Albert Jackson, Judge as aforesaid, regardless of
the sacred obligation resting upon him to administer justice faithfully,
impartially, and without respect to persons, was, at a Circuit Court
begun and held at the town of Bloomfield, in the county of Stoddard,
on the third Monday in Novemnber, A. D. 1858, whereat he, the said
Albert Jackson, presided as Judge, willfully and maliciously guilty of
the grossest partiality and injustice, to wit:
First. During the Circuit Court aforesaid, whereat said Albert Jackson
presided as aforesaid, there was pending before said court the cause of
Matthew M. Moore v8. James Walker, and the said Albert Jackson,
corruptly, partially, and to the utter degradation of the solemn and
important functions of his said office, secretly advised the said James
Walker, defendant in said cause, not to compromise the same; that the
field notes by which the property in dispute between him and the said
Moore could be identified, were lost, and that said Walker would be
successful in said cause, if he would refuse to compromise the same;
and that, in consequence of the prejudice of the said Albert-Jackson,
the said Moore was compelled to have the venu4 in said cause changed.
ART. iII. That, actuated by a spirit of arbitrary despotism and
wanton injustice, totally repugnant to the sacred duties pertaining to
his office, and highly dangerous to the rights of the citizens of the State,
the said Albert Jackson, Judge of the Fifteenth Judicial Circuit, at a
Circuit Court begun and held within and for the county of Wayne, in
the State of Missouri, at the town of Greenville, in said county, on the
last Monday in September, A. D. 1858, whereat said Albert Jackson, by
virtue of his office aforesaid, presided as Judge, was guilty of willful
and malicious oppression, misconduct, and abuse of authority in his
official capacity:
9 
iG                  IIUEPOEDNS
First. During the Circuit Court aforesaid, at the time and place aforesaid, David M. Fox, one of counsel for plaintiff, in the cause of
Limbarger vs.         Power, then and there pending before said court,
presented a petition to said Albert Jackson, then and there presiding
as Judge of said court aforesaid, to change the venue of said cause to
some other court, because of the prejudice of the Judge, and informed
him, the said Albert Jackson, that both parties and their counsel had
agreed that said cause might be sent to either the county of Madison
or the county of Iron, as either of said counties would be convenient,
and easy- of access; but the said Albert Jackson, Judge as aforesaid,
utterly unmindful of the rights of the parties and counsel in said cause,
and totally disregarding the provisions of the statute in such cases made
and provided, and willfully and maliciously intending to harrass and
oppress the parties aforesaid, and their counsel, awarded a change of
venue in said cause to Mississippi county, well knowing said county to
be remote, difficult of access, and inconvenient to all the parties, counsel, and witnesses in said cause.
Second. When counsel engaged in said cause, to wit, David M. Fox
and Philip Pipkin, attempted then and there to prevail upon him, the
said Albert Jackson, to change the venue to some other county more
convenient to all parties, and informed him that by sending said cause
to Mississippi county he would deprive them of the privilege of attending to their clients' cause, as they had been employed to do, he, the said
Jackson, replied to each of them in an oppressive, insolent and insulting manner, highly shameful, and derogatory to the dignity of the important position he occupied as Judge, as aforesaid.
ART. IV. That, influenced by a similar spirit of injustice and tyrannous disregard for the rights of the citizens of the State, the said
Albert Jackson, at a Circuit Court begun and held within and for the
county of Iqunklin, at the town of Kennett, in said county, on the
second Monday in May, A. D. 1858, whereat he, the said Albert Jackson, presided as Judge, did conduct himself, in his official capacity, in
a manner highly oppressive, unjust, and tyrannical, viz:
First. During the sitting of the Circuit Court aforesaid, at the time
and place aforesaid, counsel for the defendant, in thie cause of
Smith rs.      Cude, then and there pending before said court, whereof
said Albert Jackson was Judge, presented to said Albert Jackson,
Judge of said court, a petition to change the venue of said cause to some
other court, on account of prejudice on the part of the Judge; whereupon said Albert Jackson, willfully and maliciously intending to harrass
and oppress the parties and counsel in said cause, awarded a change of
venue in said cause to the county of Pemiscot, notwithstanding, he was
then and there assured by counsel for both parties in said cause, that
said county was difficult of access, and inconvenient to both parties and
witnesses; that both parties to said cause had agreed that the venue of
said cause should be changed to Bollinger or Scott county, either of
which would be much more convenient to all parties than the county
of Pemiscot, and that if said cause should be sent to the county of
Pemiscot, counsel for both parties would be compelled to abandon it;
and to the earnest entreaties of counsel for both parties in said cause,
that a change of venue therein might be awarded to some other county
where it would be possible for them to attend to it, and that would not
be so difficult of access, and inconvenient to the parties therein, he, the
said Jackson, angrily, rudely, and insultingly replied, in a manner indicating a total disregard for that courtesy toward counsel, and respect
for the rights of parties, that common decency and the duties of his
office required.
10
HOUSE PROCEEDINGS. 
HOUSE PROCEEDINGS. 
ART. V. That said Albert Jackson, Judge as aforesaid, has, in numerous other instances, been guilty of willful and malicious oppression,
misconduct, and abuse of authority, in awarding changes of venue in
causes pending before him as Judge as aforesaid, to counties remote,
inconvenient, and difficult of access, intending thereby to harrass and
oppress counsel and parties, and to deter others from availing themselves of their right to a change of venue under the law; particularly
at a Circuit Court begun and held at the town of Kennett, within and
for the county of Dunklin, on the second Monday in May, A. D. 1858,
whereat said Albert Jackson presided as Judge:
First. In awarding a change of venue in the cause of the Point Pleasant and Dunklin County Road Company vs. Moses Farrar, then and
there pending, to the county of Pemiscot, well knowing said county to
be inconvenient and difficult of access to the parties to said cause, and
contrary to the earnest request of both parties to said cause, to somemore convenient county.
Second. In awarding a change of venue in the cause of said Road
Company zr.. Nathaniel G. Murphy, then and there pending, to the said
county of Pcmi'scot, well knowing the same to be difficult of access andL
inconvenient to both parties and counsel.
ART. -I.  That at a Circuit Court begun and held at the town of
Poplar Bluff, within and for the county of Butler, on the first Monday
in May, A. D., 1858, whereat said Albert Jackson presided as Judge,
the said Albert Jackson was willfully guilty of gross and malicious oppression, misconduct, and abuse of official authority, not only unbecom-.
ing his high position as Judge, but disgraceful to his character as a man,e
to wit:
First. During the sitting of the Circuit Court aforesaid, whereat said.
Jackson presided as Judge as aforesaid, one William G. Phelan, a regularly licensed lawyer, practicing in said court, arose to address a jury
that had been empanneled and sworn to try an issue joined in a cause
then and there pending, to wit, the cause of Gibson rs. Dunn, in which
said Phelan had been employed and was acting as counsel; whereupon
said Albert Jackson, maliciously intending to oppress said Phelan, and
to injure his reputation as a citizen, and diminish his success as a lawyer, in an angry, oppressive, insolent, and insulting manner, ordered
him to sit down, and then and there publicly, andl in an insulting and
contemptuous manner, accused said Phelan of having been guilty of a
disgraceful and criminal act, to wit, tarneering with the qrand jelry, and
that said Phelan was in criminal contempt of court, together with other.
shameful and insulting expressions.
Second. When said Phelan immediately offered to defend himself
against said disgraceful accusations and insulting expressions, said
Albert Jackson, under color of his authority as Judge, in an angry, insolent, and oppressive manner, peremptorily ordered said Phelan to
shut his mouth and sit down, (or words of that import,) and(refused to
permit said Phelan to say anything by way of denial, excuse, explanation, palliation, or in any manner to vindicate himself against the disgraceful, criminal charge, thus publicly alleged against him by said
Judge in open court.
ART. VII. That said Albert Jackson, Judge as aforesaid, influenced
by similar spirit of malicious persecution, was, at a Circuit Court begun
and held at the town of Doniphan, within and for the county of Ripley,
on the 4th Monday in October, A. D. 1857, whereat said Jackson presided
as Judge, guilty of other and similar acts of willful and malicious oppression, misconduct, and abuse of authority:
First. In wantonly, insolently and insultingly accusing one David M.
Fox, a regularly licensed lawyer practicing in said court, of being guilty
11 
IHOUSE PROCEEDINGS.
of the crime of perjury, or subornation of perjury, and of lying, and
causing his client to lie; all of which said Albert Jackson, without any
provocation, but in a spirit of vindictive persecution, did charge upon
said Fox, in open court, whilst he, the said Albert Jackson, was exercising the functions of Judge of said court; tending by these, and innumerable other instances of oppression, contumelious, insolent, and insulting expressions towards lawyers and parties litigant, which he, the
said Jackson, almost habitually indulges in the exercise of his official
functions, to bring the high and important office he holds into utter
degradation and contempt.
ART. VIII. That said Albert Jackson, Judge as aforesaid, forgetting
the dignity of his office, and regardless of his sacred obligation to demean himself faithfully and impartially therein, did, on the trial of one
Green DePriest, on an indictment for resisting an officer in the exercise
of his official duties, had at a Circuit Court begun and held at the town
of Thomasville, within and for the county of Oregon, on the third Monday in April, A. D. 1858, whereat he, the said Albert Jackson, presided
as Judge, conduct himself willfully partial and corrupt, and highly unbecoming and disgraceful to his high official position:
First. In privately advising one James V. Odell, a lawyer, to procure
said DePriest to employ him, the said Odell, as his counsel, and to take
a contingent fee to defend him; that said DePriest could not be convicted on the indictment pending against him for resisting the officer,
because he had already been convicted of disturbing the peace of a family, which was charged to have been done at the same time he resisted
said officer.
Second. In officially and voluntarily advising said James V. Odell, as
counsel for said DePriest, to plead a former conviction; which said advice said Albert Jackson, presiding as Judge, gave said Odell in open
court, upon the trial.
Third. In partially and corruptly transcending his duties as Judge,
on the trial of said DePriest, to such an extent that the Circuit Attorney, prosecuting for the State, abandoned said cause, and entered a
nolle prosequi."
ART. IX. That, utterly unmindful of the provisions of the constitution of the State securing to its citizens "the privilege of the writ of
habeas corpus," which the experience of ages has demonstrated to be one
of the chief bulwarks of the liberties of the people, the said Albert
Jackson, Judge as aforesaid, willfully and maliciously refused to issue a
writ of habeas corpus for the purpose of having the body of a man
named         Atterbury, who was confined in jail in the county of
Dunklin, on a criminal charge, brought before him, as a Judge of the
Circuit Court of said county, to be admitted to bail, or otherwise dealt
with according to law, notwithstanding a petition, in every particular
sufficient in law for that purpose, was presented to him, the said Jackson, as Judge as aforesaid, at the county of Stoddard, on the - day of
A. D. 1858; he, the said Jackson, well knowing it to be his duty
to issue said writ, but refusing to do so because the name of David G.
Hicks was necessarily mentioned in the petition.
ART. X. That said Albert Jackson, Judge as aforesaid, was, at the
county of Stoddard, in the State of Missouri, on the 15th day of January, A. D. 1859, willfully and maliciously guilty of the most dangerous
and reprehensible misconduct, partiality, and abuse of authority:
First. In corruptly and illegally setting at liberty, and discharging
from the custody of John J. Jackson, Deputy Sheriff of the county of
Stoddard aforesaid, one John R. Maine, who had been regularly arrested, examined, and committed by competent legal authority, on a charge
of larceny and delivered into the custody of said John J. Jackson, to
12 
-~~~~~O8 PRCEIG.1
be confined in jail, in default of giving bail; he, the said Albert Jackson, well knowing that said Maine was held in custody for a criminal
offense, which was clearly and specifically set forth in the warrant of
commitment, by virtue of which he was held in custody, a copy of
which was exhibited to said Albert Jackson by the said Deputy Sheriff,
in his return to the writ of habeas corpus, by which he was compelled to
take the body of said Maine before said Jackson.
Second. In corruptly and illegally setting at liberty the said Mfaine, on
account of a pretended informality, insufficiency, or irregularity in the
writ or warrant of commitment, by virtue of which said Deputy Sheriff
held him, the said Maine, in custody, well knowing that said Maine
was held in custody for a criminal offense, and that he was expressly
forbidden by the statute to discharge any such prisoner on account
of any irregularity, insufficiency, or informality in the warrant of commitment.
Third(. In corruptly and illegally discharging said Maine from custody
without first having examined any of the evidence taken in support of
the criminal charge made against said Maine, by the Justice of the
Peace before whom said Maine was examined, as required by the statute
in such oases made and provided.
Fourth. In illegally and corruptly setting at liberty, and discharging
from the custody of William F. Cryts, a Constable of Stoddard county,
one Charles Russell, well knowing that said Russell was held in custody by said Cryts for a felonious, criminal offense, for which he, the
said Russell, had been regularly examined before Jonas Eaker, a
Justice of the Peace of the county aforesaid, and by him placed for
safe keeping until the hour of ten o'clock, (till which time he had
been allowed to procure bail,) in the custody of the Constable aforesaid.
.ifth. In willfully, corruptly, and unlawfully having said Charles Russell brought before him, the said Jackson, as Judge of the Fifteenth
Judicial Circuit, on a writ of habeas corpus, and discharging him from
further custody, well knowing that said Charles Russell was at the time
he, the said Jackson, issued said writ, lawfully in the custody of a legal
magistrate, of competent jurisdiction, before whom he had been
brought for examination, upon the charge of passing counterfeit money,
and well knowing that said magistrate had found, from the evidence
taken before him, that said Russell was probably guilty of said charge,
and that said magistrate had allowed him, the said Russell, until a certain hour to procure bail, before he would proceed to commit him to
jail, in default thereof; thereby tending to destroy the efficiency of the
criminal law, to diminish the confidence of the people in the efficacy
and purity of the judiciary of the country, to encourage the commission
of crimes, and license every variety of villainy with which it is possible
for a civilized community to be cursed.
ART. XI. That at a Circuit Court, begun and held at t) town of
Bloomfield, within and for the county of Stoddard, on the third Monday of November, A. D. 1858, whereat the said Albert Jackson presided
as Judge, the said Albert Jackson, disregarding the duties of his office,
did descend from the dignity of a Judge, and stoop to the level of a
common informer, by calling the attention of the grand jury, empanneled and sworn for that county, at said court, during his public charge
to them, to the fact that he, the said Jackson, had understood that a
certain citizen of said county had gone to Jefferson City and pretended
to transact some business for said county, in relation to obtaining some
certified lists of swamp lands; that he had obtained a warrant upon the
County Treasury for one hundred and seventy or seventy-five dollars,
and that if the facts were as he understood them, they constituted the
13
HOUSE PROCEEDINGS. 
HOUSE PROCEFDINGS.
crime of obtaining money under false pretenses, which was punishable
by imprisonment in the penitentiary, and that it was the duty of said
grand jury to make diligent inquiry of said case; that the man to
whom he alluded was a lawyer, and that they, the grand jury, could
find out who it was by asking the County Treasurer who had obtained
a warrant for a hundred seventy or seventy-five dollars; whereby everybody there, and those present, understood him, the said Judge, to mean
Solomon G. Kitchen, a citizen of said county.
And by appearing before the said grand jury, in their room where
they had retired to consider of presentments, and then and there again
telling them it was their duty to make diligent inquiry of said facts
and that if they found the facts to be as he had understood them, they
should find an indictmentagainst the person who had obtained the warrant, and that Solomon G. Kitchen was the man who had procured the
said warrant; thereby rendering his high functions as a Judge subservient to a low personal malice, and seeking, under color of his official duties, to wreak his own private vengeance, by affixing to the reputation
of a personal enemy the imperishable disgrace of a public prosecution
for a felonious offense.
ART. XII. That the said Albert Jackson, Judge as aforesaid, at a
Circuit Court, begun and held at the town. of Poplar Bluff, within and
for the county of Butler, on the first Monday in November, A. D. 1857,
whereat said Albert Jackson presided as Judge, was willfully and
maliciously guilty of gross misdemeanors and abuse of official authority:
First. In refusing to suspend the Clerk of said court and appoint a
temporary Clerk thereof, although he well knew that said Clerk was
guilty of a misdemeanor in office, in not being present and attending
to the duties required of him by law, and should therefore be suspended, and although he was earnestly requested by nearly all of the
lawyers present to appoint a temporary Clerk, in order that the business of the court might go on.
Seco?Zd. In refusing to try any cause pending in said court, civil or
criminal, at said term, regardless of the consequences upon the rights
of parties litigant and attorneys.
Third. In taking possession of the papers pertaining to causes triable
and amenable at said term, and arbitrarily refusing parties and lawyers
access thereto.
Fourth. In peremptorily discharging the grand jury, which had been
empanneled, sworn and charged to inquire, in and for the body of said
county, at said term, notwithstanding members of said grand jury informed said Judge that they had a large amount of business before
them; that they had sent out subpenas for witnesses to appealr before
them, in relation to various matters of which they were inquiring, and
did not desire to be discharged; and notwithstanding this was but the
second day of the term, and said court was allowed a Sole week in
which to hold said term: all of which misdemeanors were intended
to oppress and harrass the parties and lawyers, and calculated to impair
public confidence in the efficacy of the constitutional guaranty" that
justice shall be administered without sale, denial, or delay."
ART. XIII. That the said Albert Jackson, unmindful of the dignity
of his position as a Judge, and disregarding the restraints imposed by
his said office, did, in the month of October, A. D. 18.;7, privately counsel and advise one William Ringer to sell all the county warrants that
should be issued, in payment of a contract which said Ringer had with
Stoddard county for the building of a courthouse, and put the money
in his pocket, and then bring a suit for damages against Solomon G.
Kitchen, the commissioner, and assured him he could recover in such
14 
HOUSE PROCEEDINGS.
suit; endeavoring thereby to incite a vexatious and expensive suit in
the court of which he was himself Judge, for the purpose of annoying,
harrassing, and oppressing said Solomon G. Kitchen.
ART. XIV. That the said Albert Jackson, Judge as aforesaid, was, at
the Circuit Court begun and held at the town of Doniphan, within and
for the county of Ripley, onl the 4th Monday in April, A. D. 1858, and
on the trial of one William Kinsey, for grand larceny, which trial was
had at said court, whereat said Albert Jackson presided as Judge, will fully and maliciously guilty of great oppression, misconduct. and abuse
of official authority, corruptly intending thereby to embarrass and oppress the counsel of said Kinsey, and procure his conviction:
First. By arbitrarily refusing, to allow said Kinsey's counsel time to
take down the testimony of the witnesses introduced on said trial.
Scoid. By repeated interruptions of the counsel  for said Kinsey
during said trial, tending to harrass and embarrass them.
Thircl. By the frequent use of rude, insulting, insolent, and discourteous expressions towards said Kinsey's counsel during the trial.
Foi_.~t/. By peremptorily stopping one of said Kinsey's counsel in the
midst of his argument to the jury, and ordering him to take his seat,
although said counsel (David M.  Fox) was in the discharge of his
proper and lawful duties.
ART. XV. At the same Circuit Court, begun and held in and for the
county of Ripley as aforesaid, whereat said Albert Jackson presided as
Judge, said Albert Jackson was willfully and maliciously guilty of great
partiality, oppression, and abuse of official authority, on the trial of the
cause of James Moore vs. John Eldridge, administrator of the estate of
Wm. Parker, deceased, then and there pending, corruptly intending
thereby to injure the rights of said Moore, and to oppress and injure
his counsel:
Fir,  In publicly expressing his opinion in relation to the merits of
said cause, adversely to the rights of said Moore.
)Secon(d. In an unjust, overbearing, and insolent demeanor towards
counsel during said trial.
'JiI'(l. In refusing to sign a, bill of exceptions, duly tendered to him
by counsel for said Moore, unless it was made to show that certain facts were
proven wAeich were Shot proven o?t said trial, notwithstanding counsel for
both parties agreed that the bill of exceptions, as presented, contained
all the evidence given on said trial; corruptly intending thereby to deprive said Moore of a fair trial by the Supreme Court.
ART. XVI. That said Albert Jackson, at a Circuit Court begun and
held at the town of Bloomfield, within and for the county of Stoddard,
on the third Monday in November, A. D. 1858, whereat said Albert Jackson presided as Judge, was willfully and maliciously guilty of much
gross oppression, partiality, misconduct, and abuse of authority in his
official capacitv:
First. In expressing opinions and making assertions relative  to the
cause of Gustavus Berry vs. John Griffie, then and there pending, unbecoming his position as Judge.
Second. In expressing opinions and making assertions relative to the
merits of said cause in open court, in the presence and hearing of the
jury empanneled and sworn to try said cause, calculated to influence
the minds of the jury against the defendant.
Third. In corruptly endeavoring to prevent the defendant in said
cause from getting the same fairly before the Supreme Court on appeal,
by refusing to sign a bill of exceptions, properly tendered to him by
counsel for said defendant, until a large portion of the motion papers
had been stricken out, so that a large number of material reasons urged
for a new trial in said cause did not appear in said bill.
15 
16                 HOS   RCEDN
Fourth. In corruptly refusing to examine and sign the testimony preserved in the bill of exceptions in said cause, although counsel for both
parties agreed that all of said testimony was correctly set forth therein,
alleging as a reason that there was so much noise in court during the
trial of said cause that he did not know what testimony had been given;
corruptly intending, by such refusal, to prevent said defendant from
getting said cause fairly before the Supreme Court.
ifth. In corruptly refusing to sign a bill of exceptions properly tendered to him by counsel in the cause of Daugherty vs. Whitehead, tried
at said term of court, until he had stricken out nearly all the motion
papers filed in said cause; so that the greater number of material reasons urged for a new trial and in arrest of judgment did not appear in
said bill; corruptly intending thereby to prevent said cause from being
fairly presented to the Supreme Court, that his judgment might not be
reversed by said court.
Sixth. In hearing and determining a motion to quash an indictment
then and there pending, against one David G. Hicks, who was then and
there acting as Circuit Attorney, pro tern., without having first appointed
some other attorney to represent the State in that behalf.
ART. XVII.  That at a Circuit Court, begun and held in the town of
Bloomfield, within and for the county of Stoddard, on the 9th day of
August, A. D. 1858, whereat the said Albert Jackson presided, the said
Albert Jackson was willfully and maliciously guilty of the grossest partiality, corruption, misconduct, and abuse of authority:
.rst. In visiting the grand jury in their room after they had retired
to consider of presentments, and then instructing said grand jury that
playing cards for whisky, oysters, etc., did not constitute an o,fense
within the meaning of the statute against gaming; and further instructing said grand jury that they could not find an indictment against him,
the said Judge, for anything of which he might be guilty in his official
capacity.
Second. Whereas the grand jury empanneled, sworn and charged to
inquire in and for the county of Stoddard, aforesaid, at the Circuit Court
begun and held in said county, as last aforesaid, found an indictment
against the said Albert Jackson and David G. Hicks, who was then and
there acting as Circuit Attorney, pro tem., Isaac Brand and Orson Bart
lett, for gaming; and whereas, during said Circuit Court, said Albert
Jackson presiding, the said Orson Bartlett appeared, plead not guilty to
said indictment, and demanded a trial, which was awarded him immediately-the said Albert Jackson, presiding as Judge during said trial,
did conduct himself in a manner most shamefully partial and corrupt:
1. In commenting orally at great length upon the case, and declaring in the presence and hearing of thejury, that the fact charged in the
indictment and proven before the jury, did not constitute an indictable
offense, and illustrating his position by a great variety of illustrations,
in order to induce the jury to find the defendant, BartletT, not guilty.
2. In commenting upon the evidence adduced, and instructing the
jury, orally, as to the law governing the case, in direct contravention
to what he knew to be the words of the statute in such cases made and
provided.
3. In refusing to allow the jury to find a general Verdict, telling
them they might find the facts, but he would apply the law, and that if
they found a verdict of guilty, he would set the same aside.
4. In endeavoring by various means to influence the jury to find
a verdict of not guilty, instead of permitting them to decide impartially
whether the defendant was guilty under the law.
5. In manifesting a solicitude for the acquittal, scarcely becoming
to an advocate, but highly disgraceful to a Judge.
16
HOUSE PROCEEDINGS. 
HOUSE PROCEEDINGS.
6. In permitting David G. Hicks, who was acting as Circuit Attorney, pro tern., to enter a nolleprosequi, knowing that said Hicks as well as
himself was indicted jointly with said Bartlett as particeps crminins, and
in other shameful acts of partiality and corruption, tending to bring the
judicial tribunals of the country into utter obloquy and contempt.
ART. XVIII.  At a Circuit Court begun and held at the town of
Bloomfield, within and for the county of Stoddard, in the State of Missouri, on the third Monday in November, A. D. 1857, whereat the said
Albert Jackson, by virtue of his office of Judge of the Fifteenth Judicial Circuit, presided, and before which one Sarah Buckner was arraigned for trial on an indictment for murder in the first degree, the said
Albert Jackson, maliciously and corruptly intending to procure the conviction of said Sarah Buckner, was willfully and maliciously guilty of
the most shameful oppression, partiality, misconduct, and abuse of authority in his official capacity:
First. In preventing William C. Grimsley, a witness introduced on the
part of the State, who had testified to a certain conversation on the
part of the prisoner, from detailing such portions of said conversation as
tended to extenuate the crime charged against her; which he, the said
Jackson, did on his own motion, without the Circuit Attorney having
made any objection thereto.
Second. In privately advising the Circuit Attorney to withdraw the evidence of said Grimsley, and in permitting the Circuit Attorney to
withdraw said evidence from the consideration of the jury, and preventing the counsel for the prisoner from cross-examining said witness,
Grimsley.
Third. In allowing his partiality and solicitude for the conviction of
said prisoner, Buckner, to extend so far as to induce him, the said
Judge, to take the examination of the witnesses, and the management
of the cause, almost entirely out of the hands of the attorney prosecuting for the State, although counsel for prisoner repeatedly and earnestly protested against such gross abuse of official authority and unprecedented oppression.
Fourth. In refusing counsel for the prisoner any of the usual courtesies due from the bench to the bar, but attempting to oppress, harrass
and annoy said counsel during said trial, by making use of the most
rude, insolent, contemptuous and insulting expressioas towards them.
Fifth. In refusing to allow said prisoner's counsel to advert to or speak
of the testimony of said witness, Grimsley, in their arguments to the
jury, even to correct any impression said testimony might have made
upon the minds of said jury.
Sixth. In refusing to allow counsel for the said prisoner to make use
of illustrations in their arguments in said cause, and by repeatedly and
vexatiously interrupting the said counsel for said prisoner, during their
arguments to the jury, and so harshly and insultingly as to compel one
of said counsel to abandon the defense of said prisoner in th-midst of
his argument.
Seventh. In imposing such wanton and tyrannical restrictions upon
counsel, in arguing said cause for said prisoner, as to effectually defeat
her constitutional guaranty of being heard by herself or counsel, and
preclude the possibility of her having a fair trial by an impartial jury,
which is the ultimate and strongest protection of the rights and liberties of the people.
Eighth. In unjustly, corruptly and cruelly refusing to sign a bill of
exceptions, legally tendered to him by counsel for said prisoner, until
said bill of exceptions was made to contain the testimony of said William C. Grimsley, notwithstanding he had refused counsel for the prisoner the privilege of cross-examining said Grimsley, and had suffered
17 
18  ROUSE PROCEEDIN.             -
his testimony to be withdrawn, and had refused to allow counsel for prisoner to advert to, or comment on, said testimony, in their argument to
the jury.
Ninth. In many other corrupt and oppressive acts, indicating a degree
of indecent solicitude on the part of said Jackson, for the conviction of
said Sarah Buckner, unbecoming even a public prosecutor, but highly
disgraceful to the character of a Judge, as it was contrary to the spirit of
our laws, and subversive of justice, and tending to bring the judiciary
of the country into utter abhorrence and contempt.
And the House of Representatives, aforesaid, saving to themselves
the right of exhibiting at any time hereafter, any other or further articles or accusations or impeachment, against the said Albert Jackson,
and also of replying to his answers hereto, or to any of the foregoing
articles, or to any that they may hereafter exhibit against him, and of
offering proof to all and every of said articles, and to any that may
hereafter be exhibited against him, as the case may require, do demand
that said Albert Jackson may be put to answer the said crimes and misdemeanors, and that such proceedings, examinations, trials and judgments may be had and given as are agreeable to law and justice.
Mr. DARNES moved to lay the report of the committee on the table
till the following day at 10 o'clock, A. M.; which was adopted.
THURSDAY, February 10, 1859.
The House resumed the consideration of the report of the Committee on the Judiciary, in relation to the charges preferred against Albert
Jackson, Judge, etc.; when
Mr. HARDIX, of Callaway, offered the following resolutions:
Resolved, That the House of Representatives do now impeach Albert Jackson,
Judge of the Fifteenth Judicial Circuit, for misdemeanors in office; and for the
purpose of obtaining the trial of the same, adopt the articles of impeachment
reported to this House by the Judiciary Committee against said officer, and request that the Senate, in due season, inquire into and try the same.
Resolved, further, That the Clerk of this House transmit to the Senate these
resolutions, and the articles of impeachment.
Immediate action on these resolutions was waived, and the reading
of the evidence taken before the Judiciary Committee called for; when
Mr. ANDERSON offered the following resolution:
Resolved, That the further consideration of the report of the Committee on
the Judiciary, upon the case of Judge Jackson, be postponed until Wednesday,
the l1th day of this month; and that, in the meantime, the repor and testimony
taken before the committee be published for the use of the members of this
House.
Mr. D)AvIS, of Buchanan, moved to lay the resolution last offered on
the table; which motion was decided in the affirmative by the following vote, the ayes and noes having been demanded by Mr. Walker,
of Cape Girardeau:
AYrEs-Messrs. Abney, Baker, Barkley, Barnes, Bedford, Blackwood, Boulware, Bowlin, Briscoe, Burden, Burgess, Clark, Conway, Cordell, Cowgill,
Crandall, Cravens, Cullers, Cunningham, Darnes, Davis of Buchanan, Day,
Deatherage, Duvw], Dyer, Edgar, Ellis, Enloe, Ferry, Gates, Gideon, Glascock,,
Gooch, Gorham, Gratiott, Halley, Hardin of Callaway, Hardin of Texas, Harris
18
HOUSE PROCEEDINGS. 
HOUSE PROCEEDINGS.
of Boone, Higgins, Hines, Hudgins, Hunter, Jackson, Jameson, Keyser, King
of Franklin, King of St. Charles, Knott, Kribben, Lampton, Lenox, McAlister,
McGaugh, McSpadden, Mitchell, Moore, Munro, Murphy, Norris, O'Fallon,
Parsons, Pulliam, Rayburn, Rives, Roberts of DeKalb, Robertson, Shields,
Sitton, Strachan, Sturgeon, Tate, Taylor of Lawrence, Taylor of Lafayette,
Turner of Clinton, Turner of St. Louis, Walker of Cedar, Waltman, Wommack,
Woolsey, Yager, Young, and Mr. Speaker-88.
NoEs-Messrs. Anderson, Anthony, Blanton, Boas, Bowles, Boyd, Caldwell,
Chartrand, Chilton, Davis of Nodaway, Dent, Fagg, Guitar, Hampton, Jones of
Marion, King of Ray, Letcher, McIlhany, Maguire, Moulder, Nevill, Owen,
Parks, Peers, Pilkington, Pitt, Pollard, Polk, Pritchard, Riley, Simpson, Smraith,
Stone, Walker of Cape Girardeau, Welch, and Woodward-36.
Absent-Messrs. Cox. Edwards, Jones of Webster, and Roberts of Schuyler.
Absent on leave-Messrs. Ament, Dillon, Ferris, Harris of Montgomery, White,
Wilcox, and York.
A message from the Governor, and other business, prevented further
consideration of the impeachment case until the night session; when
Mr. GUITA.R offered the following resolutions, which were adopted:
Resolved, That during the reading of the evidence in the matter of the impeachment now pending against Judge Jackson, no one shall be allowed to be
present in the hall, except the members and officers of this House, and the accused and his counsel.
Resolved, That the Speaker shall instruct the Doorkeeper and Sergeant-atArms to keep the hall clear of all persons, except as provided in the foregoing
resolution.
The hall having been cleared of all spectators, in accordance with
the above resolutions, the evidence taken before the Judiciary Commits
tee was read, and being concluded, the House adjourned.
FRIDAY, February  11, 1859
The House having resumed the consideration of the matter of the
impeachment of Judge Jackson,
Mr. CLARK offered the following resolution:
Resolved, That the House do now go into secret session, to consider the impeachment case of Judge Jackson.
Mr. YAGER moved to lay this resolution on the table; which was car
tied.
Mr. ROBERTS, of DeKalb, offered the following resolution, as a substitute for the resolution offered by Mr. Hardin, of Callaway:
Resolved, That after a patient hearing of the testimony in the case ofmpeaching Albert Jackson, now pending before this House, we find nothing in said
testimony to justify this House in sending said case to the Senate; therefore,
Resolved, That we disagree to the report of the committee to whom said case
was referred.
Mr. DARNES moved to lay the resolution on the table; which motion
was decided in the affirmative by the following vote, the ayes and noes
beingi demanded by Mr. Fagg:
AYrs-Messrs. Abney, Baker, Barkley, Barnes, Bedford, Blackwood, Blanton,
Boas, Boulware, Bowlin, Briscoe, Burden, Chartrand, Chilton, Conway, Cowgill,
Cox, Crandall, Cravens, Cunningham, Darnes, Davis of Buchanan, Day, Deatherage, Dent, Dyer, Edgar, Ferry, Gates, Gideon, Glascock, Gooch, Gorham,
19 
HOUSE PROCEEDINGS.
Gratiott, Guitar, Hampton, Halley, Hardin of Callaway, Hardin of Texas, Harris of Boone, Higgins, Hudgins, Hunter, Jackson, Jameson, Jones of Webster,
Keyser, King of Franklin, King of St. Charles, Knott, Lampton, Lenox,
MeAlister, McIlhany, MIcSpadden, Maguire, Mitchell, Moore, Munro, Moulder,
Murphy, Nevill, Norris, Parks, Parsons, Peers, Pulliam, Rayburn, Rives, Robertson, Shields, Simpson, Stone, Strachan, Tate, Taylor of Lawrence, Taylor of
Lafayette, Turner of Clinton, Walker of Cedar, Waltman, Wommack, Woolsey,
Yager, Young, and Mr. Speaker-83.
NoEs-Messrs. Anderson, Anthony, Bowles, Boyd, Clark, Cordell, Davis of
Nodaway, Enloe, Fagg, Hines, Jones of Marion, Letcher, Pilkington, Pollard,
Polk, Pritchard, Riley, Roberts of DeKalb, Sitton, Sturgeon, Walker of Cape
Girardeau, and Welch-23.
Absent-Messrs. Ellis, O'Fallon, Owen, Pitt, Roberts of Schuyler, and Turner
of St. Louis.
Absent on lertve-Messrs. Ament, Dillon, Duval, Ferris, Harri, of Montgomery,
Smith, White, Wilcox, and York.
Sick-Messrs. Burgess, Cullers, and Kribben.
Excused from voting-Messrs. Edwards, King of Ray, McGaugh, and Woodward.
Mr. BRISCOE called for the previous question.
The question then being "shall the main question now be put?" it
was decided in the affirmative by the following vote, the ayes and noes
being demanded by Mr. Edwards:
AYES-Messrs. Abney, Baker, Barkley, Barnes, Bedford, Blackwood, Blanton,
Bowles, Boulware, Boas, Bowlin, Briscoe, Calwell, Chartrand, Chilton, Conway,
Cowgill, Cox, Crandall, Darnes, Davis of Buchanan, Day, Deatherage, Dent,
Dyer, Edgar, Enloe, Ferry, Gates, Gideon, Glascock, Gorham, Gratiott, Guitar,
Halley, Hardin of Callaway, Hardin of Texas, Harris of Boone, Higgins, Hunter, Jackson, Jameson, Jones of Webster, Keyser, King of Franklin, Knott,
Kribben, Lampton, Lenox, McAlister, McGaugh, McSpadden, Mitchell, Moore,
Munro, Moulder, Murphy, Nevill, Norris, Parsons, Peers, Pilkingtoni, Pulliam,
Riley, Robertson, Simpson, Strachan, Sturgeon, Tate, Taylor of Lawrence, Turner of Clinton, Walker of Cedar, Waltman, Wommack, Woolsey,Yager, Young,
and Mr. Speaker-79.
NoEs-Messrs. Anderson, Anthony, Boyd, Burden, Clark, Cordell, Cunningham, Davis of Nodaway, Edwards, Enloe, Gooch, Hampton, Hines, Hudgins,
Jones of Marion, King of Ray, King of St. Charles, Letcher, McIlhany, Maguire, O'Fallon, Owen, Parks, Pitt, Pollard, Polk, Pritchard, Rives, Roberts of
DeKalb, Sitton, Taylor of Lafayette, Walker of Cape Girardeau, Welch, and
Woodward-34.
Absent-Messrs. Ellis, Rayburn, Roberts of Schuyler, and Stone.
Absent on leave-Messrs. Ament, Cravens, Dillon, Duval, Ferris, Harris of
Montgomery, Smith, White, Wilcox, and York.
Sick-Messrs. Burgess and Cullers.
So the House decided that the main question should be put, twothirds of the members present having voted in the affirmative.
Mr. JONES, of Marion, moved that the record evidence in the case of
impeachment of Albert Jackson be read; which was lost by the following vote, the ayes and noes having been demanded by'Mr. Hudgins:
AYEs-Messrs. Anderson, Anthony, Barnes, Boyd, Burden, Caldwell, Clark,
Conway, Cordell, Cunningham, Davis of Nodaway, Dent, Enloe, Fagg, Ferry,
Gates, Gooch, Guitar, Hampton, Hardin of Callaway, Hines, Hudgins, King of
Ray, King of St. Charles, Knott, Letcher, McGaugh, McIlhany, Maguire, Moore,
Nevill, O'Fallon, Owen, Parks, Polk, Pollard, Pritchard, Riley, Rives, Simpson,
Sitton, Stone, Taylor of Lafayette, Walker of Cape Girardeau, Welch, Woodward, and Woolsey-47
Nois-Messrs. Abney, Baker, Barkley, Bedford, Blackwood, Blanton, Boas,
Boulware, Bowles, Bowlin, Briscoe, Chartrand, Chilton, Cowgill, Cox, Crandall,
Cravens, Darnes, Davis of Buchanan, Day, Deatherage, Dyer, Edgar, Gideon,
Glascock, Gorham, Gratiott, Halley, Hardin of Texas, Harris of Boone, Hunter,
Jackson, Jameson, Jones of Webster, Keyser, Kribben, Lampton, Lenox, McAl
20 
MOUSE PROCBEDRNGS.
ister, McSpadden, Mitchell, Munro, Moulder, Murphy, Norris, Parsons, Peers,
Pilkington, Pitt, Pulliam, Rayburn, Roberts of DeKalb, Robertson, Shields,
Strachan, Sturgeon, Tate, Taylor of Lawrence, Turner of Clinton, Walker of
Cedar, Waltman, Wommack, Yager, Young, and Mr. Speaker-64.
Absent-Messrs. Edwards, King of Franklin, Roberts of Schuyler, and Turner
of St. Louis.
Absent on leave-Same as before.
Sick-Messrs. Burgess and Cullers.
Excused from voting-Mr. Jones.
Mr. O'FALLOS moved an adjournment; which was lost by the following vote, the ayes and noes being demanded by Mr. Bowlin:
AYES-Messrs. Anderson, Anthony, Barnes, Boyd, Caldwell, Clark, Davis of
Nodaway, Fagg, Ferry, Gratiott, Hampton, Harris of Boone, Hines, Jackson,
Jones of Marion, Jones of Webster, Letcher, McIlhany, O'Fallon, Peers, Polk,
Shields, Taylor of Lafayette, Walker of Cape Girardeau, Welch, and Woodward-26.
NOEs-Messrs. Abney, Baker, Barkley, Bedford, Blackwood, Boulware, Bowles,
Bowlin, Briscoe, Burden, Chartrand, Chilton, Conway, Cowgill, Cox, Crandall,
Cravens, Cunningham, Darnes, Davis of Buchanan, Day, Deatherage, Dent,
Dyer, Edgar, Enloe, Gates, Gideon, Glascock, Gooch, Gorham, Guitar, Halley,
Hardin of Callaway, Hardin of Texas, Hunter, Jackson, Keyser, King of Ray,
King of St. Charles, Knott, Kribben, Lampton, Lenox, McAlister, McSpadden,
McGaugh, Maguire, Mitchell, Moore, Munro, Moulder, Murphy, Nevill, Norris,
Owen, Parsons, Pilkington, Pitt, Pollard, Pritchard, Pulliam, Rayburn,  Riley,
Rives, Roberts of DeKalb, Robertson, Simpson, Stone, Strachan, Sturgeon, Tate,
Taylor of Lawrence, Turner of Clinton, Walker of Cedar, Waltman, Wommack,
Woolsey, Yager, Young, and Mr. Speaker-82.
Absent-Messrs. Blanton, Boas, Burgess, Edwards, Hudgins, King of Franklin, Parks, Roberts of Schuyler, and Sitton. 
Absent on leave-Messrs. Ament, Dillon, Duval, Ellis, Ferris, Harris of Montgomery, Higgins, Smith, White, Wilcox, and York.
Sick-Mr. Cullers.
The question then recurring upon the adoption of the resolutions
offered by Mr. Hardin, of Callaway, the same were adopted by the following vote, the ayes and noes being demanded by Mr. Pulliam:
AYEs-Messrs. Abney, Baker, Barkley, Barnes, Bedford, Blackwood, Boulware, Bowlin, Briscoe, Burden, Chartrand, Chilton, Conway, Cowgill, Cox, Crandall, Cravens, Cunningham, Darnes, Davis of Buchanan, Day, Deatherage,
Dent, Edgar, Ferry, Gideon, Glascock, Gooch, Gorham, Gratiott, Guitar, Halley,
Hardin of Callaway, Hardin of Texas, Harris of Boone, Hunter, Jackson, Jameson, Jones of Webster, Keyser, King of St. Charles, Knott, Kribben, Lampton,
Lenox, McAlister, McIlhany, McSpadden, Mitchell, Moore, Munro, Moulder,
Murphy, Nevill, Norris, Parsons, Pilkington, Pitt, Pulliam, Rayburn, Riley,
Rives, Robertson, Shields, Stone, Strachan, Sturgeon, Tate, Taylor of Lafayette,
Taylor of Lawrence, Turner of Clinton, Walker of Cedar, Waltman, Wommack,
Woolsey, Yager, Young, and Mr. Speaker-78.
NoEs-Messrs. Anderson, Bowles, Boyd, Caldwell, Clark, Cordell, Davis of
Nodaway, Enloe, Fagg, Gates, Hampton, Hines, Letcher, Peers, Pollard, Polk,
Pritchard, Roberts of DeKalb, -Simpson, Sitton, Walker of Cape Girardeau, and
Welch-22.
Absent-Messrs. Anthony, Blanton, Boas Burgess, Edwards, Hudgins, King
of Franklin, O'Fallon, Parks, Roberts of Schuyler, and Turner of St. Louis.
Absent on leave-Same as before.
Excused from voting-Messrs. Jones of Marion, King of Ray, McGaugh, Maguire, Owen, and Woodward.
Sick-Messrs. Cullers and Dyer.
Mr. KEYSER offered the following resolution:
21 
HOUSE PROCEEDINGS.
WHEREAS, The House of Representatives have caused articles of impeachment to
be preferred against Judge Albert Jackson to be transmitted to the Senate
for trial; and, whereas, it becomes the duty of the House to elect managers
to prosecute said impeachment before the Senate, as aforesaid; therefore,
be it
Resolved, That John B. Henderson and James Proc. Knott be, and they
are hereby, appointed such managers, to conduct said impeachment before the
Senate.
Mr. RILEY offered the following as a substitute for the resolution offered by Mr. Keyser:
Resolved, That the House do now proceed to elect two managers to conduct
the prosecution before the Senate, against Judge Albert Jackson.
Mr. DARNES moved the rejection of the substitute; which motion was
decided in the negative.
Mr. HU-DGINS moved to amend the substitute by striking out'  two"
and inserting "five"; which was decided in the negative.
Mr. TURNER, of Clinton, offered the following amendment to the substitute:
Amend by striking out the word "two" and inserting "three";
Which was disagreed to by the following vote, the ayes and noes being demanded by Mr. Sitton:
AYEs-Messrs. Abney, Anthony, Baker, Barkley, Barnes, Bedford, Blackwood,
Boulware, Bowles, Bowlin, Burden, Chartrand, Conway, Cowgill, Crandall, Davis of Buchanan, Day, Edgar, Ferry, Guitar, Halley, Hardin of Callaway, Hardin of Texas, Harris of Boone, Hudgins, Keyser, King of St. Charles, Kribben,
McAlister, McIlhany, Maguire, Mitchell, Munro, Murphy, O'Fallon, Pilkington,
Rayburn, Rives, Strachan, Taylor of Lawrence, Turner of Clinton, Turner of
St. Louis, Young, and Mr. Speaker-44.
NoEs-Messrs. Anderson, Blanton, Boas, Boyd, Briscoe, Caldwell, Chilton,
Clark, Cordell, Cox, Cunningham, Damrnes, Davis of Nodaway, Deatherage, Dent,
Dyer, Enloe, Fagg, Gates, Gideon, Glascock, Gooch, Gorham, Gratiott, Hampton,
Hines, Hunter, Jackson, Jameson, Jones of Marion, Jones of Webster, King of
Franklin, Lampton, Lenox, Letcher, McGaugh, McSpadden, Moore, Moulder,
Nevill, Norris, Owen, Parks, Parsons, Peers, Pollard, Polk, Pritchard, Pulliam,
Riley, Roberts of DeKalb, Robertson, Shields, Simpson, Sitton, Stone, Sturgeon,
Tate, Taylor of Lafayette, Walker of Cape Girardeau, Walker of Cedar, Waltman, Welch, Wommack, Woodward, and Woolsey-66.
Absent-Messrs. Bowlin, Cravens, Edwards, Knott, Pitt, and Yager.
Absent on leave-Same as before.
Excused from voting-Mr. King of Ray.
Sick-Mr. Cullers.
Mr. NORRIS offered the following amendment to the substitute:
Amend by adding "that the above number be selected from the members of
this House";
Which was agreed to by the following vote, the ayes and noes being
demanded by Mr. Darnes: 
AYES-Messrs. Anthony, Blanton, Boas, Boulware, Bowlin, Boyd, Briscoe, Caldwell, Clark, Conway, Cordell, Cowgill, Cox, Crandall, Cunningham, Davis of
Buchanan, Davis of Nodaway, Day, Edgar, Gates, Gideon, Glascock, Gooch,
Gorham, Gratiott, Guitar, Hampton, Hardin of Callaway, Hardin of Texas, Harris of Boone, Hudgins, Jackson, Jameson, Jones of Marion, King of St. Charles,
Kribben, Lampton, McGaugh, McIlhany, McSpadden, Maguire, Mitchell, Nevill,
Norris, O'Fallon, Owen, Parks, Pilkington, Pollard, Polk, Pritchard, Riley,
Roberts of DeKalb, Robertson, Shields, Simpson, Strachan, Sturgeon, Taylor of
Lawrence, Taylor of Lafayette, Turner of Clinton, Turner of St. Louis, Walker
of Cedar, Woodward, Young, and Mr. Speaker-66.
NOES-Messrs. Abney, Anderson, Baker, Barkley, Barnes, Bedford,  Blackwood, Bowles, Chartrand, Chilton, Cravens, Darnes, Deatherage, Dent, Dyer,
22 
HOUSE PROCEEDINGS.
Enloe, Fagg, Ferry, Halley, Hines, Hunter, Jones of Webster, Keyser, King of
Franklin, Lenox, Letcher, McAlister, Moore, Munro, Moulder, Murphy, Parsons, Peers, Pulliam, Rayburn, Rives, Sitton, Stone, Tate, Walker of Cape Girardeau, Waltman, Welch, Wommack, and Woolsey-44.
Absent-Messrs. Burden, Burgess, Edwards, Knott, Pitt, Yager, and Roberts of
Schuyler.
Absent on leave-Same as before.
Sick-Mr. Cullers.
The substitute, as amended, was then adopted.
Nominations for managers being in order,
The CHAIR announced that the vote would be taken for each manager
separately.
Mr. NORRIS put in nomination James Proctor Knott, of Scotland
county.
Mr. ANTHONY nominated Christian Kribben, of St Louis.
The roll being called, there appeared
For Mr. KNOTT-Messrs. Abney, Baker, Barkley, Barnes, Bedford, Blackwood,
Blanton, Boas, Boulware, Bowles, Bowlin, Briscoe, Burden, Caldwell, Chartrand,
Chilton, Clark, Conway, Cowgill, Cox, Crandall, Cravens, Cunningham, Damrnes,
Davis of Buchanan, Deatherage, Dent, Dyer, Edgar, Ferry, Gates, Gideon, Glascock, Gooch, Gorham, Gratiott, Guitar, Hampton, Halley, Hardin of Callaway,
Hardin of Texas, Harris of Boone, Hines, Hunter, Jackson, Jameson, Jones of
Webster, Keyser, King of Franklin, King of St. Charles, Kribben, Lampton,
Lenox, McAlister, McGaugh, McIlhany, McSpadden, Mitchell, Moore, Munro,
Moulder, Murphy, Nevill, Norris, O'Fallon, Parks, Peers, Pilkington, Pritchard,
Pulliam, Rayburn, Riley, Rives, Roberts of DeKalb, Robertson, Shields, Simpson, Stone, Strachan, Sturgeon, Taylor of Lafayette, Taylor of Lawrence, Turner
of Clinton, Turner of St. Louis, Walker of Cedar, Waltman, Wommack, Woolsey, and Young-90.
For Mr. KRIBBrN-Messrs. Anthony, Boyd, Day, Knott, Owen, and Tate-6.
Absent-Messrs. Burgess, Edwards, Hudgins, Maguire, Parsons, Polk, Pitt,
Roberts of Schuyler, Sitton, Walker of Cape Girardeau, Yager, and Mr. Speaker.
Absent on leave-Same as before.
Excused from voting-Messrs. Anderson, Cordell, Davis of Nodaway, Enloe,
Fagg, Jones of Marion, King of Ray, Letcher, Pollard, and Welch.
Sick-Mr. Cullers.
Mr. KNOTT, having received a majority of all the votes cast, was declared duly elected one of the managers.
Nominations being still in order,
Mr. DAvis, of Buchanan, nominated Charles H. Hardin, of Callaway
county.
Mr. ANTHONY nominated Christian Kribben, of St. Louis county.
The roll being called, there appeared
For Mr. HARDIN-Messrs. Baker, Barnes, Bedford, Blackwood, Blanton, Boas,
Boulware, Bowles, Boyd, Briscoe, Burden, Caldwell, Chilton, Conway, Cowgill,
Cox, Cravens, Cunningham, Darnes, Davis of Buchanan, Day, Deatherage, Dent,
Ferry, Gates, Gideon, Glascock, Gooch, Gorham, Gratiott, Guitar, Hardin of
Texas, Harris of Boone, Hunter, Jackson, Jameson, Jones of Websttr, King of
Franklin, King of St. Charles, Kribben, Lampton, Lenox, McGaugh, Mcllhany,
McSpadden, Moore, Munro, Moulder, Murphy, Nevill, Norris, Parks, Pulliam,
Rayburn, Rives, Roberts of DeKalb, Robertson, Shields, Stone, Taylor of Lafayette, Taylor of Lawrence, Turner of Clinton, Walker of Cedar, Wommack,
Woodward, Woolsey, and Young-68.
For Mr. KRIBBsN-Messrs. Abney, Anthony, Barkley, Chartrand, Halley,
Hlardin of Callaway, Hines, McAlister, O'Fallon, Owen, Pilkington, Riley,
frnpson, Strachan, and Waltman-15.
Absent-Messrs. Bowlin, Burgess, Clark, Crandall, Dyer, Edgar, Edwards,
Hampton, Hudgins, Jones of Marion, Keyser, Knott, Maguire, Parsons, Peers,
Pitt, Polk, Roberts of Schuyler, Sitton, Sturgeon, Turner of St. Louis, Walker
of Cape Girardeau, Yager, and Mr. Speaker.
Absent on leave-Same as before.
23 
HOUSE PROCEEDINGS.
Excused from voting-Messrs. Anderson, Cordell, Davis of Nodaway, Enloe,
Fagg, King of Ray, Mitchell, Pollard, Pritchard, and Welch.
Sick-Mr. Cullers.
Mr. HARDIN, having received a majority of all the votes cast, was declared duly elected as the other manager, under the resolution.
SATURDAY, February 12, 1859.
Mfr. BURDEN offered the following resolution, which was adopted:
Resolved, That the managers elected by this House be instructed to repair
to the Senate, and, at the bar thereof, in the name of the House of Representatives, and of all the people of the State, to impeach Albert Jackson, Judge of
the Fifteenth Judicial Circuit, and acquaint the Senate that the House of Representatives will, in due time, exhibit proper articles of imnpeachment against
him, and make good the same, and to demand that the Senate take order for the
appearance of said Jackson, to answer said impeachment.
MONDAY, February 14, 1859.
Mr. COWGILL offered the following resolution, which was adopted:
Resolved, That the managers elected by this Htouse to conduct the impeachment against Albert Jackson, Judge of the Fifteenth Judicial Circuit, do now
proceed to present to the Senate the articles adopted by the House of Representatives, in support of such impeachment.
SATURDAY, February 19, 1859.
Mr. WHITE offered the following resolution:
Resolved by the HTouse of Representatives, That the House furnish the Senate
with all the original evidence taken by the Committee on the Judiciary, in investigating the charges against Albert Jackson, Judge of the Fifteenth
Judicial Circuit, in accordance with the resolution of the Senate,communicated
to this House yesterday.
Mr. KNOTT offered the following as a substitute:
Resolved, That the Clerk of this House be required to make out a copy of the
testimony supporting the articles of impeachment, preferred by this House
against one Albert Jackson, late Judge of the Fifteenth Judicial Circuit
of Missouri, now pending, and forward the same to the Senate.
Mr. DAY moved to lay the substitute on the table; which was decided
in the affirmative.
The resolution offered by Mr. White was then adopted.
21 
HOUSE PROCEEDINGS.
TUESDAY, February 22, 1859.
Message from the Senate by Mr. Murray, Assistant Secretary:
MR. SPEAKER: I am instructed by the Senate to inform the House of Representatives, that the following resolution has passed the Senate:
Resolved by the Senate, the -ouse of Representatives concurring therein, That
when the two Houses adjourn on the second Monday in March next, the Senate
shall stand adjourned until the first Monday in June next, at which time it shall
meet for the purpose of trying the case of Albert Jackson, Judge of the Fifteenth
Judicial Circuit, upon the impeachment preferred against him by the House of
Representatives; and the House of Representatives shall stand adjourned until
the fourth Monday in July next, at which last mentioned day the two Houses
shall stand adjourned sine die, by virtue of this resolution.
During the evening session,
Mr. COWGILL moved to suspend the rules, in order to take up the foregoing concurrent resolution, which motion prevailed; and the resolution
being taken up, was read a first time, and the rule suspended, and
read a second time; when
Mr. HARDIN, of Texas, offered the following substitute:
Resolved by the House of Representatives, the Senate contcurring therein, That
the General Assembly of the State of Missouri adjourn on Monday, the 7th day
of March, A. D. 1859, to meet on the first Monday in November thereafter; and
that the Senate have leave to meet on the first Monday in June, A. D. 1859, and
proceed to the trial of the impeachment of Judge Albert Jackson, and that so
soon as such trial be had, the Senate adjourn, to meet the House on the said
first Monday in November.
The substitute was read, when
Mr. ANDERSON moved to reject the same; which was decided in the
affirmative by the following vote, the ayes and noes being demanded
by Mr. Hardin, of Texas:
AYES-Messrs. Abney, Ament, Anderson, Baker, Barkley, Blanton,  Boas,
Bowles, Boyd, Burgess, Conway, Cordell, Cowgill, Cox, Cravens, Cullers, Cunningham, Davis of Buchanan, Deatherage, Dent, Dillon, Dyer, Edgar, Fagg,
Ferris, Ferry, Gates, Gideon, Glascock, Gooch, Halley, Hardin of Callaway,
Harris of Boone, Harris of Montgomery, Higgins, Hudgins, Jackson, Jameson,
Jones of Marion, Jones of Webster, Keyser, King of Franklin, King of Ray,
Letcher, McAlister, McGaugh, Maguire, Munro, Moulder, Nevill, O'Fallon,
Parks, Parsons, Peers, Pollard, Pritchard, Riley, Roberts of DeKalb, Robertson,
Shields, Simpson, Stone, Strachan, Turner of Clinton, Walker of Cape Girardeau, Welch, White, Wilcox, Wommack, Woolsey, Yager, York, Young, and
Mr. Speaker-74.
NorEs-Messrs. Anthony, Bedford, Boulware, Burden, Caldwell, Chartrand,
Chilton, Clark, Crandall, Day, Enloe, Gratiott, Hampton, Hardin of Texas,
IHines, Hunter, King of St. Charles, Knott, Lampton, Lenox, McSpadden, Murphy, Norris, Pilkington, Polk, Smith, Tate, Taylor of Lawrence, Walker of
Cedar, and Waltman-30.
Absent-Messrs. Blackwood, Edwards, Ellis, Mitchell, Moore, Pitt, Pulliam,
Rayburn, Roberts of Schuyler, Sturgeon, and Turner of St. Louis.
Absent on leave-Messrs. Barnes, Darnes, Guitar, McIlhany, Owenll, Gorham,
Pilkington, Sitton, and Woodward.
Sick-Messrs. Bowlin, Briscoe, Duval, and Rives.
WEDNESDAY, February 23, 1859.
MIr. KRIBBEN, on leave, (while a resolution touching the question of
adjournment was pending,) offered the following resolution:
25 
HOUSE PROCEEDINGS.
Resolved by the House of Representatives, That the Attorney General of the
State be hereby required to give to this House his legal opinion in regard to the
following question: The Senate and House agreeing to adjourn on the second
Monday in March next, to meet on the first Monday of November; now, by
consent of the House, can the Senate meet in vacation and trythe case of Albert
Jackson, Judge of the Fifteenth Judicial Circuit?
Mr. HUDGINS moved to lay the resolution on the table, which was lost;
and the question being taken on the adoption of the resolution, it was
decided in the affirmative.
FRIDAY, February 25, 1859.
The SPEAKER laid bbefore the House the following communication from
the Attorney General:
ATTORNEY GENERAL'S OFFICE,             }
JEFFERSON CITY, February 24, 1859. 
The Honorable, the Hlouse of Representatives:
GENTLEMEN: YOU request my opinion upon the question submitted in
:the following resolution:
"Resolved by the House of Representatives, That the Attorney General be required to give to this House his legal opinion in regard to the following question: The Senate and House agreeing to adjourn on the second Monday in
March next, to meet on the first Monday of November; now, by consent of the
House, can the Senate meet in vacation and try the case of Albert Jackson,
Judge of the Fifteenth Judicial Circuit?"
No question arises upon the proposition submitted, as to the right of
one  House  of the General Assembly to sit for legislative purposes,
pending the adjournment of the other to a period within the session.
The constitutional inhibition upon either House to adjourn without the
consent of the other, for more than two days, at any one time, permits,
by clear implication, an adjournment for a longer period, with such consent. And if the relations of the two Houses to each other, as constituent branches of the General Assembly, are not materially changed
after articles of impeachment have been preferred, and the Senate
assumes the functions of a court, then that body may proceed with the
trial, although the House be not actually in session.
Our constitution provides that the House of Representatives shall
have the sole power of impeachment; that all impeachments shall be
tried by the Senate, and that the concurrence of two-thirds of the Sena.tors present shall be necessary to convict. Similar provisions are found
in most of the State constitutions, and in the constitution gf the United
States.
All the power possessed by the House of Representatives in cases of
impeachment is by virtue of the constitution only; and this is confined
to the accusation and preferring articles of impeachment. Our statute
concerning impeachments, so far as it prescribes any formula of proceedings and practice, is only declaratory of the common and customary
law of parliamentary bodies, especially as it prevails in the British Parliament, and in this country. The prototype of the legislative assemblies of this country is the Parliament of Great Britain, so modified as
to make it harmonize with our political system and the genius of our
-institutions; and the law of proceedings in these bodies, where the constitution and the rules of proceedings which it authorizes, and which
26 
HOUSE PROCEEDINGS.
are adopted pursuant to it, are silent, is, undoubtedly, the rules and
practice of the British Parliament. Precedents in parliamentary practice acquire the force of law, and are regarded with the same respect
as those which have been established by courts of justice, and thus
become the common law of legislative assemblies; and to this resort
must be had for the definition of legal terms, and the construction of
legal powers mentioned in our constitution and laws, in connection with
parliamentary practice, where no act of Assembly, judicial interpretation, or settled usage, has altered their meaning. An impeachment is
a written accusation by the House of Representatives of an officer, in
which that body acts solely in the character of complainants or accusers, and the Senate performs the functions of a judicial tribunal.
This prosecution, according to the practice of the House of Commons,
is conducted by managers previously appointed for the purpose among
their own members. The managers sustain to the House the relation
of counsel, and proceed with the trial in the same manner as in an indictment; and the trial does not differ in essentials from criminal
prosecutions before inferior courts.
The practice of the British House of Commons, however, has given
the force of parliamentary law to the custom of attending in a body
during the progress of the trial; and this has been followed in this
country by the House of Representatives of the United States. If this
is essential to the due exercise of the constitutional power of impeachment, or to the prosecution of that impeachment, then the precedent
has as much the force of a constitutional obligation as if expressly required. The only practical purpose, it seems, for which this was claimed,
as a right, by the House of Commons, is thus stated: In case of conviction, the Commons demand judgment of the Lords, without which
they would object to its being pronounced The necessity for the Commons to demand judgment enables them to spare the accused even after
he has been found guilty by the Lords. In the cases of the Earl of
Wintoun and Lord Lovat, it was resolved by the Commons "that it was
not parliamentary for the Lords to give judgment until the same be
first demanded by the House."-[Dwarris.] According to another
English authority, the House of Commons have a right to be present,
whether they appoint managers or not, that every member may satisfy
his conscience whether he will give his vote to demand judgment.[Strafford's case, Commons Journal 2, 105-8.] It will be observed that
this claim of the Commons to demand judgment was based upon the
assumed right to arrest the prosecution even after the accused was
found guilty, and thus virtually grant him a pardon. Such interposition has never been claimed or exercised in this country, on the part of
the prosecutor or body preferring the accusation. It is a power utterly
inconsistent with, and subversive of, the jurisdiction of the Senate as a
Court of Impeachment Although the House of Representatives of the
United States has followed the precedent of the British House of Commons, in attending in a body upon the trial, yet it has never assumed
that it had the right to exercise the power claimed and exercised by
the House of Commons in such cases.
It may be assumed that the House has the right to prefer additional
articles of impeachment; yet this is not a sufficient reason why it
should remain in session, and anticipate the occasion for so doing, or
presume that it would be necessary to do so. On the contrary, the presumption would be that the accusation preferred would be sufficient,
and that the functions of the House in that behalf had ceased. Besides, an impeachment is not abated by reason of an adjournment of
the General Assembly, or the termination of the session. It may be
resumed by a succeeding Legislature, and the House may prefer a new
27
4p 
HOUSE PROCEEDINGS.
accusation, or may add other articles of impeachment at a subsequent
session. The question of the effect of a dissolution of Parliament upon
a pending impeachment was raised at the trial of Warren Hastings,
and it was then determined that the practice in cases of impeachment
was analagous and conformable to the invariable course of precedents
in all other judicial proceedings, and that the prosecution did not abate
by a dissolution of Parliament. Although, then, the precedent referred
to may have acquired the force of parliamentary law, yet, like all others
that do not affect the substance of the proceeding, it may be disregarded
without abridging, or in any wise impairing, the constitutional rights of
the House, as the accuser.
The contingencies of a vacancy in the Committee of Managers, by
death or from other cause, and a possible failure of the prosecution for
that reason, may be provided for by a law authorizing the Governor to
appoint other managers; or the House itself may anticipate such contingency by appointing, before its adjournment, alternates.
I have to say, then, in conclusion, that the Senate, by consent of the
House, may, in my opinion, meet in vacation and try the case of Judge
Jackson.                      Very respectfully,
E. B. EWING.
The Senate amendment to House resolution in relation to adjournment was taken up, and agreed to by the following vote, the ayes and
noes being demanded by Mr. Hudgins:
AYEs-Messrs. Anthony, Baker, Barkley, Boas, Bowles, Boyd, Caldwell, Chartrsnd, Chilton, Cowgill, Cox, Cunningham, Darnes, Davis of Nodaway, Deatherage, Dent, Dillon, Duval, Edwards, Ellis, Ferris, Gates, Gratiott, Hampton,
Halley, Hardin of Callaway, Hardin of Texas, Harris of Montgomery, Higgins,
Hines, Hunter, Keyser, Lampton, Lenox, McSpadden, Mitchell, Moore, Moulder, Murphy, Parsons, Pilkington, Shields, Smith, Sturgeon, Tate, Taylor of
Lafayette, Taylor of Lawrence, Turner of St. Louis, Walker of Cedar, Waltman, Wilcox, Woodward, Yager, York, Young, and Mr. Speaker-56.
N OEs-Messrs. Abney, Ament, Anderson, Boulware, Burgess, Clark, Conway,
Cordell, Cravens, Davis of Buchanan, Day, Dyer, Edgar, Enloe, Fagg, Ferry,
Gideon, Glascock, Gooch, Harris of Boone, Hudgins, Jackson, Jameson, Jones of
Marion, Jones of Webster, King of Franklin, King of Ray, King of St. Charles,
Letcher, McGaugh, McIlhany, Maguire, Munro, Nevill, Norris, Parks, Peers,
Pollard, Polk, Pritchard, Riley, Rives, Roberts of DeKalb, Robertson, Simpson,
Sitton, Stone, Strachan, Walker of Cape Girardeau, Welch, White, Wommack,
and Woodward-53.
Absent-Messrs. Blackwood, Blanton, Burden, Kribben, McAlister, O'Fallon,
Pitt, and Rayburn.
28
a, 
IN THE SENATE.
SATURDAY, February 12, 1859.
The following message from the House of Representatives was delivered at the bar of the Senate by Messrs. Knott and Hardin, two of the
members of said House:
Mr. PRESIDENr.T: In obedience to a resolution of the House of Representatives
of the State of Missouri, we now here, in the name of the House of Representatives, and of all the people of the State, impeach Albert Jackson, Judge of the
Fifteenth Judicial Circuit, of high crimes and misdemeanors, and apprise the
Senate that the House of Representatives will, in due time, exhibit proper articles of impeachment against him, and make good the same; and request the
Senate to take order for the appearance of said Albert Jackson to make answer
to said impeachment.
On motion of Mr. PARSONS, the message was referred to a select comnittee of three, consisting of Messrs. Parsons, Richardson, and Wilson,
to consider and report thereon.
Thereafter the select committee to whom had been referred the foregoing message, made and submitted the following report, through their
Chairman, Mr. Parsons:
WHEREAS, The House of Representatives, on the 12th day of the present month,
by two of their members, Messrs. Knott and Hardin, at the bar of the Sen    ate, impeached Albert Jackson, Judge of the Fifteenth Judicial Circuit in
the State of Missouri, of high crimes and misdemeanors in office, and ac    quainted the Senate that the House of Representatives will, in due time, ex    hibit particular articles of impeachment against him, and make good the
same; and likewise demanded that the Senate take order for the appearance
of said Albert Jackson to answer the said impeachment; therefore,
Resolved, That the Senate will take proper order thereon, of which due notice
shall be given to the House of Representatives.
And the committee further recommend to the Senate, that the Secretary of
the Senate be directed to notify the House of Representatives of the foregoing
resolution.
PARSONS,
RICHARDSON,
WILSON,
Committee.
The report of the committee was read and agreed to, and the resolution constituting a part of the report was read a first and second time,
and adopted.
Afterwards on the same day, on motion of Mr. PARsONs,
Resolved, That the Senate will now resolve itself into a Court of Impeachment,
and that the following oath be administered to the President of the Senate by
the Secretary, and by the President to each member of the Senate present:
" I solemnly swear, (or affirm, as the case may be,) that in all things appertaining to the trial of the impeachment of Albert Jackson, Judge of the Fifteenth
Judicial Circuit in the State of Missouri, I will impartially try and determine
the charges, and do justice according to the law and evidence."
Which Court of Impeachment, being thus formed, will immediately thereafter receive the managers appointed by the House of Representatives to exhibit
articles of impeachment in the name of themselves, and all the people of the 
SENATE PROCEEDINGS.
State of Missouri, against Albert Jackson, Judge of the Fifteenth Judicial Circuit in the State of Missouri, pursuant to the notice this day given to the Senate
by the House of Representatives, that they had appointed managers for the purpose aforesaid.
Resolved, further, That the Secretary lay this resolution before the House of
Representatives.
On motion of Mr. PARSONS,
Resolved, That after the managers of impeachment shall be introduced to the
bar of the Senate, and shall have signified that they are ready to exhibit articles
of impeachment against Albert Jackson, the President of the Senate shall direct
the Sergeant-at-Arms to make proclamation, who shall, after making proclamation, repeat the words following: "All persons are commanded to keep silence,
on pain of imprisonment, while the grand inquest of the State is exhibiting to
the Senate articles of impeachment against Albert Jackson, Judge of the
Fifteenth Judicial Circuit in the State of Missouri." After which the articles
shall be exhibited, and then the President of the Senate will take proper order
on the subject of the impeachment, of which due notice shall be given to the
House of Representatives.
The required oath was then administered to the President by the
Secretary of the Senate, and by the President to the following Senators
present, to wit:
Messrs. Brown, Byrne, Churchill, Fox, Frazier, Gullett, Halliburton,
Hedgpeth, Horner, Hyer, Johnson, Jones, McFarland McFerran, McIlvaine, Morris, Newland, O'Neil, Parsons, Rains, Richardson, Robinson,
Vernon, Wilson, and Wood.
Mr. MfcFERRAN, before being sworn, gave notice that he would take
the oath only under protest, and afterwards presented the following
protest, and asked that it be entered upon the Journal of the Senate,
which was agreed to:
Mr. PRESIDENT: A resolution having passed the Senate requiring the Senators
present to be sworn to try the case of impeachment against the Hon. Albert
Jackson, Judge of the Fifteenth Judicial Circuit, of which the Senate has been
notified by the managers of the House of Representatives; and, whereas, said
managers have not, as yet, preferred articles of impeachment against said
Jackson, and the Senate has not appointed a day for the appearance of the
accused, and no summons has issued, with a copy of the articles of impeachment annexed, requiring the accused to appear on the day appointed for
that purpose, and answer the charges exhibited against him, and no answer to
said charges, or reply thereto, has been filed, and no issue joined in said case of
impeachment, as required by an act, entitled "an act respecting impeachments," approved November 17,1855; and, whereas, by said act continuing and
in force, the members of the Senate are not required to be sworn until the issues
are made up, and a time and place appointed for the trial of such impeachment; and, whereas, my name having been called to take the oath to try said
cause in accordance with said resolution, and believing the proceedings irregular, premature and unlawful, because in utter disregard of the above recited act,
I hereby most respectfully ask leave to enter this my protest agsinst the proceedings, and ask that this may be entered upon the Journals.
JAMES McFERRAN.
The Senate was then resolved into a High Court of Impeachment, and
without further proceedings adjourned till Monday morning at 10
o'clock.
30 
HIGH COURT OF IMPEACHMENT.
STATE OF MISSOURI vs. ALBERT JACKSON.
MIONDAY, February 14, 1859.
The PRESIDENT of the Senate administered the oath prescribed to
Messrs. Goodlett, Peyton, Thompson, and Wright.
The Court was opened by proclamation.
The managers on the part of the House of Representatives, viz.,
Messrs. Knott and Hardin, appeared and were admitted, and
Mr. HARDIN announced that they were now ready, upon the part of
the House of Representatives, and all the people of the State, to exhibit
particular articles in support of their impeachment of Albert Jackson,
Judge of the Fifteenth Judicial Circuit of the State of Missouri, for
high crimes and misdemeanors.
Mr. KNOTT arose and read the articles of impeachment,* which were
signed by John T. Coffee, Speaker of the House ot Representatives, and
attested by William S. Moseley, Chief Clerk.
The PRESIDENT of the Senate then informed the managers that the
Senate would take proper order on the subject of the impeachment, of
which due notice should be given to the House of Representatives.
The articles of impeachment were then delivered to the Secretary of
the Senate to be filed.
On motion of Mr. PARSONS, and by unanimous consent,
Resolved, That the Secretary be requested to issue a summons in the usual
form, signed by the President and attested by the Secretary, against Albert
Jackson, Judge, etc., with a copy of the articles of impeachment annexed, as
exhibited against him by the House of Representatives on this day, requiring
him to appear and answer the charges exhibited against him in said articles, on
Tuesday, the 15th instant, and that it be served by the Sergeant-at-Arms, the
day before the return day thereof.
Ordered, That the Secretary be requested to lay this resolution before
the House of Representatives. 
On motion of Mr. PARSONS, and by unanimous consent, it was further
Resolved, That one hundred copies of the articles of impeachment exhibited
against Albert Jackson, Judge of the Fifteenth Judicial Circuit, be printed for
the use of the Senate.
On motion of Mr. PARSONS, the Court then adjourned until 3 o'clock,
P. m., on Tuesday next.
*The articles of impeachment do not appear here because they are embodied in the House
proceedings.  Vide pp. 8-18, aite.                                            SRErcrTER. 
32
COURT RECORD.
TUESDAY, February 15, 1859.
The PRESIDENT of the Senate administered the oath prescribed to
Messrs. Harris and Coleman.
The Court was then opened by proclamation.
The summons issued to Albert Jackson, and the precept endorsed
thereon, are as follows:
STATE OF MISSOURI, SS:
The State of f~issouri to ALBERT JACKSON, Judge of the Fifteenth Judicial Circuit
of Missouri, Greeting:
WHEREAS, The House of Representatives of the State of Missouri did, on the
14th day of February, A. D. 1859, exhibit to the Senate articles of impeachment
against you, the said Albert Jackson, Judge, etc., in the words following: [Here
follows the articles of impeachment, for which vide pp. 8-18, ante.] And did demand that you, the said Albert Jackson, should be put to answer the accusations as set forth in said articles, and that such proceedings, examinations, trials
and judgments might be thereupon had as are agreeable to law and justice; you,
the said Albert Jackson, are, therefore, hereby summoned to be and appear before the Senate of the State of lMissouri, at their chamber in the City of Jefferson, on the 15th day of February, A. D. 1859, then and there to answer to the
said articles of impeachment, and then and there to abide by, obey and perform
such orders and judgments as the Senate of the State of Missouri shall make in
the premises, according to the constitution and laws of the State of Missouri.
Hereof you are not to fail.
Witness, HANCOCK JACKSON, President of the Senate thereof, at the City of Jefferson, this 14th day of February, in the year of our Lord one thousand eight
hundred and fifty-nine.
WARWICK HOUGH, [L. S.]
Secretary of the Senate.
STATE OF MISSOURI, SS:
The State of Missouri to WILLIAM L. THRAILKILL, Sergeant-at-Arms of the Senat~
of the State of Missouri, Greeting:
You are hereby commanded to deliver to, and leave with Albert Jackson, if to
be found, a true and attested copy of the within writ of summons, together with
a like copy of this precept, and the articles of impeachment herewith, showing
him the same; or, in case he cannot, with convenience, be found, you are to
leave true and attested copies of the said summons and precept, and articles of
impeachment, at his dwelling-house or usual place of abode, with some free
white member of the family, over the age of fifteen years; and in whichsoever
way you perform the service, let it be done at least one day before the appearance day mentioned in said writ of summons. Fail not, and make return of this
writ of summons and precept, with your proceedings thereon endorsed, on or before the appearance day mentioned in the said writ of summons.
Witness, HANCOCK JACKSON, President of the Senate of the State of Missouri,
at the City of Jefferson, this 14th day of February, in the year of our Lord one
thousand eight hundred and fifty-nine.
ATTEST: ~   ~       ~       WRIC    OUeI,[..
WARWICK HOUfH, [L. S.]
Secretary of the Senate.
The return of the Sergeant-at-Arms of the foregoing summons and
precept was read, as follows:
I, WILLIAM L. THRAILKILL, Sergeant-at-Arms of the Senate of the State of
Missouri, in obedience to the within writ of summons, to me directed, did proceed
to the Citv Hotel, in the City of Jefferson, on Monday, the 14th instant, and did
then and there deliver to and leave with the within named Albert Jackson, a
true copy of the within writ of summons and articles of impeachment, and a
like copy of the precept thereon endorsed, and did show him both.
W. L. THRAILKILL.
CITY OF JEFFERSON, Feb. 15, 1859. 
COURT RECORD.                    33
The Secretary then administered the following oath to the Sergeantat-Arms:
You, WILLIAM L. THPRAILKILL, Sergeant-at-Arms of the Senate of the State of
Missouri, do swear that the return made and subscribed by you upon the process
issued on the 14th day of February, instant, by the Senate of the State of Missouri, against Albert Jackson, Judge of the Fifteenth Judicial Circuit, is truly
made, and that you have performed the services as therein described; so help
you God.
Proclamation was then made, as follows:
Oyez! Oyez! Oyez! ALBERT JACKSON, Judge of the Fifteenth Judicial Circuit
of the State of Missouri, come forward and answer the articles of impeachment
exhibited against you by the House of Representatives of the State of Missouri.
Mr. PARSONS offered the following resolution, which was unanimously
adopted:
Resolved, That the Doorkeeper of the Senate procure seats within the bar for
Judge Jackson and his counsel, (if any,) and also for the managers appointed on
the part of the I-ouse of Representatives.
ALBERT JACKSOX then appeared in person, and presented reasons why
he should not be required to answer the articles of impeachment preferred against him by the House of Representatives, and asked that
they be filed. After debate,
On motion of Mlr. JONES, the Court adjourned until 9 o'clock to-morrow morning.
WEDNESDAY, February 16, 1859.
The Court having been opened by proclamation, the managers on the
part of the House of Representatives attended.
ALBERT JACKSON, respondent, also attended.
Mr. PARSONS offered the following resolution:
Resolved, That the President appoint a committee of three to draft rules for
the government of the Senate while sitting as a Court of Impeachment.
Which was, upon ballot, adopted: all the Senators present voting in
the affirmative.
Absent-Messrs. Gullett, Hlalliburton, and Robinson.
Absent on leave-Mr. Scott.
The respondent, on leave, withdrew his reasons why he should not be
required to answer the articles of impeachment preferred against him
by the House of Representatives, which he had asked to be filed, and
asked further time in which to file his answer.
On motion of Mr. PARsONs,
Ordered, That Albert Jackson file his answer and plea with the Secretary of
the Senate, to the articles of impeachment preferred against him by the House
of Representatives, on Thursday evening at 2 o'clock.
On motion of Mr. PARSONS,
Resolved, That the House of Representatives be informed that the Hon. Albert
Jackson, against whom articles of impeachment have been exhibited, has ap        3
33
COURT RECORD. 
COURT RECORD.
peared to the summons issued against him, and that, upon his motion, leave is
given him until to-morrow at 2 o'clock, P. M., to file his answer, and at which
time the Senate will take further order on said impeachment, of which the
House of Representatives will be duly informed.
On motion of Mr. PARSONS, the Court adjourned until 2 o'clock to-morrow evening.
THURSDAY, February 17, 1859.
The PRESIDE-T of the Senate administered the oath prescribed to Mr.
Scott
The Court was opened by proclamation, and the managers on the part
of the House of Representatives attended, as also the respondent, Albert Jackson.
ALBERT JACKSON being called upon to make answer to the articles of
impeachment exhibited against him by the House of Representatives,
appeared, without counsel; and having been asked by the President of
the Senate whether he was prepared to answer the said articles, he replied in the affirmative, and requested that his answer might be read by
the Secretary.
The PRESIDENT of the Senate then directed the Secretary to read the
answer, and it was accordingly read, and is as follows:
Answer of Albert Jackson, Jidge of the Fifteenth Ju(licial Cireitt, to Articles
of Impeachment exhibited against him in the Senate of the State of Mis    souri, ont February twelft, eighteen hundred and o fty-nlie.
ARTICLE T.  The said Albert Jackson, Judge of the Fifteenth Judicial Circuit, saving and reserving to himself the benefit of all mistakes
and irregularities which now exist, which have been or may be made,
in any and all the proceedings, the proceedings heretofore had, or which
may hereafter be had, and denying to the House of Representatives
the right to alter, amend, modify, or withdraw any part or portion of
said articles, or at any time hereafter to exhibit any other or further
articles of impeachment herein; for answer to so much of said articles
as he deems it necessary for him to answer or respond to, says that:
First. He wholly and fully denies that at the May term of the Circuit
Court of Stoddard, begun on the third Monday in May, 1858, in said
county, in his official capacity, or under color of his office, he did willfully and maliciously conduct himself in a manner highly oppressive
and unjust to one Jonas Eaker.
To specification first of said article, said Albert Jackson says that he
did not desire to oppress and harrass said Jonas Eaker, Id did not ma
liciously and unjustly cause to be issued against said Eaker an attachment as for a criminal contempt; that, in his official capacity, he knew
nothing about the manner in which said writ of mandamus had been
executed on said Eaker.  The said Eaker admitted said writ had been
served on him, but refused to make return to said writ; then an attach ment was issued against said Eaker for contempt of court, by refusing
to make a proper return on said writ, as will appear by the papers and
record in relation thereto.
For answer to specification second, he says hlie did not refuse to hear
counsel speak for said Eaker after his appearatice, but when Eaker made
return to the writ he was discharged from the attachment without a
penalty; does not know that said Eaker was in custody several hours;
34 
COURT RECORD.
thinks he was not; but that he came into court and asked for time to
answer, which was granted.
Third. Said Jackson did not peremptorily, and in an insulting and
oppressive manner, order the counsel of said Eaker, to wit, Solomon
G. Kitchen and William G. Phelan, to shut their mouths; said Jackson
did not know they were counsel for Eaker; they said they were not,
but claimed the right to appear as the next friend of the court.
Fourth. Did not deprive said Eaker of counsel, and of the privilege of
speaking through counsel, in his own defense.
Said Jackson says that article first, and specifications  1, 2, 3, and 4,
are insufficient in law, and do not contain charges of a nature and de gree that would warrant a conviction in an impeachment. The said
Jackson has the right, by virtue of his office, to issue writs of manda mus to an inferior court, and enforce by attachment the return of every
writ or process sent out of said Circuit Court.
ART. II. Said Albert Jackson says that at a Circuit Court begun at
Bloomfield, on the third Monday in November, 1858, he was not guilty
of the grossest partiality and injustice:
First. That he did not know that there was then pending a suit by
Matthew H. Moore against James Walker, in said court, and that he did
not corruptly, partially, and to the utter degradation of the solemn duties
of his office and important functions thereof, secretly advise said Walker
not to compromise the same, and say that said Walker would be successful if he would refuse to compromise. Does not know for what
reason Moore took a change of venue; knows he was not compelled to
do so; thinks he had applied for a change of venue on the first or second
day of court, which application for a change of venue was the first said
Jackson knew about Moore having sued Walker.
This article and its specifications are not sufficient in law to warrant
impeachment. It does not allege that the said Jackson did what he did
do in his official capacity or under color of his office, but, on the contrary, says he did it in his private capacity.
ART. III. Said Jackson says that he was not actuated by a spirit of
arbitrary despotism and wanton injustice, totally repugnant to the
sacred duties pertaining to his office, and highly dangerous to the rights
of the citizens of the State, at a court begun and held in the county of
Wayne, on the last Monday in September, 1858, and by virtue of his
office was not guilty of malicious oppression, misconduct, and abuse of
authority, in his official capacity:
First. Does not know that during the Circuit Court aforesaid, David
M. Fox, counsel for plaintiff in the case of Limbarger vs. Power, presented a petition to said Albert Jackson to change the venue in said
case to some other court, because of prejudice of the Judge.  Said Fox
did not then inform said Albert Jackson that both parties and their
counsel had agreed to send said cause to either Madison or Iron counties, and the said Albert Jackson was not utterly unmindful of the
rights of the parties and counsel in said cause, and did rnt totally
disregard the provisions of the statute in such case made and provided. The said Jackson did not willfully and maliciously then and there
intend to harrass and oppress the parties aforesaid, by awarding a
change of venue to Mississippi; and said Jackson did not well know
that said county was of difficult access to the parties, and counsel, and
witnesses, (but believed there were good counsel residing in Mississippi
county.)
Second. Said Jackson does not know that D. M. Fox and P. Pipkin
tried to prevail on him to send the case to some other county, and that
parties would be deprived of counsel if he did not- and the said Jackson did not reply to each of them in an oppressive, insolent and insults
35 
ing manner, highly shameful and derogatory to the dignity of the important office he holds. Said Jackson says the law is, that the Judge,
and not the lawyers, must decide where a case must be sent on a change
of venue.
ART. IV. Said Jackson says he was not influenced by a similar spirit
of injustice and a tyramnouts disregard of the rights of the citizens of the
State, at a Circuit Court, begun and held within and for the county of
Dunklin, on the second M{onday in May, 1858; did not conduct himself
in a manner highly oppressive, and unjust, and tyrannical:
First. At the time and place aforesaid the said Albert Jackson did not
know that counsel for defendant, in the case of Smith v.    - Cude,
then pending, presented to said Albert Jackson a petition to change the
venue in said case to some other court, on account of prejudice of said
Judge. The said Albert Jackson did not then and there willfully and
maliciously intend to harrass and oppress the parties and their counsel,
by awarding a change of venue in said case to Pemiscot county, (that
being the proper county to send it to.) Said Jackson did not know
that said counsel for both parties assured him that said county was difficult of access and inconvenient to both parties and witnesses. Said
Jackson did not know that the -parties to said cause had agreed that
said case could be sent to Bollinger or Scott counties. Said Jackson
did not know that either of said counties would be more convenient
than Pemiscot county (that being only twenty-five miles dlistant, and
Bollinger about ninety miles, and Scott about eighty miles distant.)
Said Jackson did not know that said parties could not get counsel to
attend to their cause, if it was sent to Pemiscot county. Said Albert
Jackson did not know of the earnest entreaties of the counsel of both
parties to get the cause sent to some other county. The said Jackson
did not angrily, and insultingly, and rudely reply, in a rnanner indicating a total disregard for that courtesy towards counsel, and respect for
the rights of parties, that common decency and the duties of his office
require.  Said Jackson further says that the law is, that in cases of
change of venue the Judge, and not the parties nor their counsel, has
the right to designate the county to which a cause should be sent; and
that, therefore, it is not willful and malicious oppression, partiality, misconduct, or abuse of authority in his official capacity, or under color of
his office, to send a case, on change of venue, from Dunklin county to
FPemiscot county, or from Wayne county to Mississippi county.
ART. V. Said Albert Jackson has not, in numerous other instances
been guilty of willful and malicious oppression, misconduct, and abuse
of authority, in awarding changes of venue in cases pending before
him to counties remote, inconvenient, and difficult of access. Said Albert Jackson never did intend thereby to harrass and oppress counsel
and parties, nor to deter others from availing themselves of their right
to a change of venue under the law, nor particularly at a Circuit
Court begun and held in the county of Dunklin, on the second Monday
in May, 1858:
First. In awarding a change of venue in the case of the Point Pleasant
and Dunklin County Road Company vs. Moses Farrar, from Dunklin to
Pemiscot county.  Said Jackson did not well know said county to be
inconvenient and difficult of access to said parties, and contrary to the
earnest request of both parties to the cause, to send said cause to some
more convenient county. Said Jackson further says, that in cases of
change of venue, the Judge, not the parties nor their counsel, has the
right to designate the county to which a cause shall be sent therefore
it is not willful and malicious oppression, partiality, misconduct, or abuse
of authority in his official capacity, or under color of his office, to send
a cause, on a change of venue, in this case, from Dunklin county to
36
COURT RECORD. 
Pemiscot, by the Judge, however difficult of access said county may be,
or however much parties or counsel may desire it to be sent to some other
county.
Second. Nor in sending or awarding a change of venue in the cause of
said Road Company vs. Nathaniel Murphy, then and there pending, to
the said county of Pemiscot, the said Jackson not well knowing that to
be difficult of access and inconvenient to both parties and counsel, was
the said Jackson guilty of willful and malicious oppression, partiality,
misconduct, or abuse of authority in his official capacity, or under color
of his office; the law in this case being that the Judge, not the parties
or their counsel, has the sole right to designate the county to which a
cause shall be sent on a change of venue.
ART. VI. Said Jackson was not, at a Circuit Court begun and held
at the town of Poplar Bluff, within and for the county of Butler, on
the first Mlonday in May, 1858, willfully guilty of gross and malicious
oppression, misconduct, and abuse of official authority, not only unbecoming his high position as Judge, but disgraceful to his character as a
man:
First. During the sitting of the Circuit Court aforesaid, one William
G. Phelan was not a regularly licensed lawyer, practicing in said court.
The said William G. Phelan did not arise to address a jury that had
been empanneled and sworn to try an issue joined in a cause then and
there pending, to wit, the cause of Gibson vs. Dunn; said Phelan had
not been employed, and was not acting as counsel. The said Jackson
did not maliciously intend to oppress said Phelan, nor to injure his
reputation as a citizen, nor to diminish his success as a lawyer; nor did
the said Albert Jackson, in an angry, oppressive, insolent, and insulting
manner, order him to sit down. The said Jackson did not then and
there publicly, and in an insulting and contemptuous manner, accuse
said Phelan of having been guilty of a disgraceful and criminal act
Said Albert Jackson did not accuse said Phelan with tampering with
the grand jury; nor did he say that said Phelan was in criminal
contempt of court, together with other shameful and insulting expressions.
Second. Said Phelan did not immediately offer to defend himself
against disgraceful accusations and insulting expressions. Said Albert
Jackson did not, under color of his office as Judge, in any angry, insolent, and oppressive manner, order said Phelan to shut his mouth and
sit down, nor words to that import. The said Phelan did not offer to
say anything by way of denial, excuse, explanation, palliation, or in any
manner to excuse himself against the disgraceful criminal charge alleged against him.
ART. VII. Said Albert Jackson was not influenced by a similar
spirit of malicious persecution at a Circuit Court begun and hkld at the
town of Doniphan, in Ripley county, on the fourth Monday in October,
1857; and was not guilty of other and similar acts of willful and malicious oppression, misconduct, and abuse of authority:
First. Said Albert Jackson did not wantonly, insolently, and insultingly accuse one David M. Fox, who was not a regularly licensed lawyer,
and who was not practicing in said court, of being guilty of the crime
of perjury, nor of subornation of perjury, nor did he accuse him of
lying (though he thinks said Fox was often guilty of doing so;) nor of
causing his client to lie, the said Albert Jackson did not, without provocation, nor in a spirit of vindictive persecution, charge upon said Fox,
in open court. The said Albert Jackson did not by innumerable other
instances of oppression, contumelious, insolent, and insulting expressions
toward lawyers and parties litigant; nor does the said Jackson almost
37
COURT RECORD. 
COURT RECORD.
habitually indulge in such expressions, to bring the high and important
office he holds into utter degradation and contempt.
ART. VIII. Said Albert Jackson did not forget the dignity of his
office, and was not regardless of his sacred obligations to demnean himself faithfully and impartially therein; did not, on the trial of Green
DePriest, in an indictment for resisting the officer, there being no such
indictment and trial against said DePriest at a Circuit Court held in
the town of Thomasville, in the county of Oregon, on the third Monday in April, 1858; did not conduct himself willfully partial and
corrupt, and highly unbecoming and disgraceful to his high official
position:
First. Said Albert Jackson did not privately advise James B. Odell
(James B. Odell was not a lawyer) to procure said DePriest to employ
him, the said Odell, as his counsel; did not advise him to take a contingent fee to defend him; did not say that said DePriest could not be
convicted on the indictment (there being no indictment then and there
pending against him,) pending against him for resisting the officer, because he had already been convicted of disturbing the peace of a family,
which was charged to have been the same act as when he resisted the
officer; did not officiously and voluntarily advise said James B. Odell,
as counsel for DePriest, to plead a former conviction; did not give said
advice in open court upon the trial; did not partially and corruptly
transcend his duties as Judge, on the trial of said DePriest, to such an
extent that the Circuit Attorney abandoned said cause, and entered a
nolLe proseqgt. 
ART. IX. Said Albert Jackson was not utterly unmindful of the
provision of the constitution of the State securing to its citizens the
privilege of the writ of habeas corps. Said Jackson does not know that
the experience of ages has demonstrated that the writ of habeas corpus
is one of the chief bulwarks of the liberty of the people; joins issue and
takes the negative of the proposition. Said Albert Jackson did not
willfully and maliciously refuse to issue a writ of habeas corpus
for the purpose of having the body of a man named Atterbury, who
was confined in jail in Dunklin county, on a criminal charge, brought
before him as Judge of the Circuit Court, to be admitted to bail or
otherwise dealt with according to law. Said Albert Jackson says there
was not a petition, in every particular sufficient in law for that purpose,
presented to him at the county of Stoddard, on the         day of 1858.
Said Jackson did not well know it to be his duty (under the circumstances) to issue said writ.  Said Jackson did not refuse to do so for
the reason that the name of David Hicks was necessarily mentioned in
the petition.
ART. X. Said Albert Jackson was not, at the county of Stoddard,
on the 15th day of January, 1859, willfully and maliciously guilty of
the most dangerous and reprehensible misconduct, partiality, and abuse
of authority:
First. In corruptly and illegally setting at liberty, and discharging
from the custody of John N. Jackson, one John R. Maine.  Said
Albert Jackson did not well know that said Maine was held in custody
on a criminal charge. Said Jackson says that the cause for commitment was not clearly and specifically set forth in the warrant of commitment, a copy of which was not exhibited to said Albert Jackson, by
said Deputy Sheriff
Second. Said Albert Jackson did not corruptly and illegally set at
liberty on account of a pretended informality, insufficiency, or irregularity in the writ of commitment.  Said Jackson did not well know that
said Maine was held in custody for a criminal offense; did not know he
38 
-~~~~~OR REOD.3
was by statute expressly forbidden to discharge said Maine on a writ of
habeas corpus.
Third. Said Jackson did not corruptly and illegally discharge said
Maine from custody. There was no evidence produced before said
Jackson whatever, nor did said Jackson know that any evidence had
ever been taken against said Maine. 
Fourth. Said Albert Jackson did not willfully and corruptly set at
liberty, and discharge from the custody of William Cryts, one Charles
Russell; said Jackson did not know that said Russell was held in custody on a criminal charge, for a felonious offense, for which said Russell
had been examined and committed. Said Jackson did not know from
the evidence that said magistrate had found said Russell guilty of said
charge. Said Jackson did not know that Russell had been given time
to get bail. The course said Jackson pursued in this matter was just
and proper, and did not tend to destroy the efficiency of the criminal
law, nor diminish the confidence of the people in the efficiency and purity of the judiciary of the country, nor does it tend to encourage the
commission of crime, and license every variety of villainy with which it
is possible for a civilized community to be cursed. The case of Maine
and the case of Russell transpired since the institution of this impeachment.
ART. XI.  At a Circuit Court begun and held at the town of Bloom.field, on the third Monday in November, 1858, said Albert Jackson did
not disregard the duties of his office, nor did he descend from the dignity of a Judge, nor did he stoop to the level of a common informer,
(does not know, though, exactly what kind of character that is,) by
charging the grand jury in relation to their duties, nor to direct their
attention to any particular offense which may have been committed
within the limits of the county. Said Albert Jackson does not know
that every body then and there present thought he alluded to S. G.
Kitchen when he publicly charged the grand jury that obtaining money
under false pretenses was an indictable offense. The said Jackson did
not, by informing the grand jury, after they had retired to their room
to consider of their presentment, that it was their duty faithfully to discharge their duties, thereby render his high functions as Judge subservient to a low personal malice, and did not thereby seek, under color of
his official duties, to wreak his own private vengeance, by affixing to the
reputation of a personal enemy the imperishable disgrace of a public
prosecution for a felonious offense.
ART. XII. Said Albert Jackson was not, at a court of Butler county,
on the first Monday in November, 1857, willfully and maliciously guilty
of gross misdemeanor and abuse of his official authority:
First. In refusing to suspend the Clerk of said court and appoint a
temporary one, because said Clerk was sick and unable to attend to
business. Said Jackson did nrot know that said Clerk had been guilty
of a misdemeanor in office, by getting sick during a tern of court.
Said Jackson was not willfully and maliciously guilty of gross misdemeanor and abuse of official authority, and regardless of the rights of
parties litigant and attorneys, by refusing to try causes when there
was no Clerk to take minutes or make up the record, nor in taking
possession of the papers pertaining to cases and placing them in safety;
nor in discharging the grand jury under these circumstances, and adjourning court; nor was such course intended and calculated to impair
public confidence in the efficacy of the constitutional guaranty that
justice shall be administered without sale, denial, or delay.
ARr. XIII. That said Albert Jackson was not unmindful of the
dignity of his position as Judge, and did not disregard the restraints
imposed by his said office, in the month of November, 1857. The said
39
COURT RECORD. 
40                   COR   EOD
Jackson did not privately counsel and advise one William Ringer to
sell all the county warrants that should be issued in payment of a contract which said Ringer had with Stoddard county, for the building of
a court house, and put the money in his pocket, (though he believed it
would be good advice.)  Said Jackson did not advise said Ringer to
bring suit against Solomon G. Kitchen, the commissioner, for damages;
nor did he assure him he could recover in such suit.  Nor  did said
Jackson endeavor thereby to incite a vexatious and expensive lawsuit,
in the court of which he was Judge, for the sake of annoying, harrassing, and oppressing said Solomon G. Kitchen.
ART. XIV. Said Jackson was not, at a Circuit Court of Ripley
county, on the fourth Monday of April, 1858, on the trial of William
Kinney for grand larceny, willfully and maliciously guilty of oppression,
misconduct, and abuse of official authority, and corruption; nor did he
intend thereby to embarrass and oppress the counsel of said Kinney,
and procure his conviction:
First. Said Albert Jackson did not arbitrarily refuse to allow said
Kinney's counsel time to take down the testimony of the witnesses introduced at said trial.
Second. Did not, by repeated interruption of the counsel for prisoner,
try to harrass and embarrass them.
Third. Did not frequently use such insulting, insolent, and discourteous expressions toward said counsel, during the trial.
Fourth. Did not peremptorily stop one of said Kinney's lawyers in the
midst of his argument to the jury, and order him to take his seat.
Said David M. Fox was not in the discharge of his proper and lawful
duties.
ART. XV. At the same court, said Albert Jackson was not willfully
and maliciously guilty of great partiality, oppression, and abuse of official authority, on the trial of James Moore vs. John Eldridge.  Said
Jackson did not corruptly intend thereby to injure the rights of said
Moore, and to oppress and injure his counsel:
First. Said Jackson did not publicly express his opinion in relation to
the merits of said case, adversely to the right of said Moore. Said
Jackson did not refuse to sign a true, and proper, and just bill of exceptions, duly tendered to him by counsel for defendant, unless it was
made to show that certain facts were proven, which were not proven on
said trial by witnesses, though said facts were proven by the appearance
and condition of a certain paper then and there produced before said
jury, and which facts would be proven by occular inspection of said
paper only, and not by a copy; counsel for both parties did know that
the bill of exceptions, as presented, contained all the evidence given on.
said trial. Said Jackson did not corruptly intend thereby to deprive
said Moore of a fair trial by the Supreme Court. Said Jackson was not
unjust, overbearing, and insolent in his demeanor toward counsel during said trial.
ART. XVI.  Said Albert Jackson, at a Circuit Court in Stoddard
county, on the third Monday in November, 1858, was not willfully and
maliciously guilty of any gross oppression, partiality, misconduct, and
abuse of authority, in his official capacity:
First. Said Jackson did not express opinions, and make assertions,
unbecoming his position as Judge, in relation to the cause of Gustavus
Berry vs. John Griffiths, (said Jackson does not know that such cause
was then and there pending.)
Second. Said Jackson did not express opinions, and make assertions,
relative to the merits of said cause, in open court, in presence and
hearing of the jury empanneled and sworn to try the case, calculated
to influence the minds of the jury against the defendant.
40
COURT RECORD. 
COURT~~~~~~~~~~~~~~~~~~~~~~ ILCR.4
Third. Said Jackson did not corruptly endeavor to prevent the de
fendant in said cause from getting the same fairly before the Supreme
Court, on appeal.  Said Jackson did not refuse to sign a bill of exceptions, properly made out and tendered to him by counsel for defendant,
until a large portion of the motion papers had been stricken out. Said
Jackson says that a number of material reasons were not urged for a
new trial in said cause, which did not appear in said bill
Fourth. Said Jackson did not corruptly refuse to examine and to sign
the testimony presented in the bill of exceptions in said cause; counsel
for both parties did not agree that all of said testimony was correctly
set forth in the bill of exceptions. Said Jackson did not allege that
there was so much noise in court during the trial of said cause that he
did not know what testimony had been given. Said Jackson did not
intend, by such refusal, to prevent the said defendant from getting said
cause fairly before the Supreme Court.
Fifth. Said Jackson did not corruptly refuse to sign a bill of exceptions, properly made out, and tendered to him by counsel, in the cause
of Daugherty vs. Whitehead. Said Jackson does not know that said
cause was tried at said term of court. Said Jackson did not strike out
nearly all papers filed in the cause. Said Jackson says that the greater
number of material reasons urged for a new trial, and in arrest of judgment, did not appear in the bill correctly. Said Jackson did not intend
thereby to prevent said cause from being fairly presented to the Supreme Court, that his judgment might not be reversed by said court.
Sixth. Said Jackson did not hear and determine a motion to quash an
indictment then and there pending against one David Hicks, then acting as Circuit Attorney, pro tern., without having first appointed some
other Circuit Attorney to represent the State in that behalf.
ART. XVII. Said Jackson says that there was no regular Circuit
Court begun and held at the town of Bloomfield, in Stoddard county,
on the 9th day of August, 1858. Said Albert Jackson was not willfully
and maliciously guilty of the grossest partiality, corruption, misconduct,
and abuse of authority. Said Jackson did not visit the grand jury in
their room, after they had retired to consider of their presentments,
and there instruct said grand jury that betting at cards, whisky, oysters, etc., did not constitute an offense within the meaning of the statute against gaming.  Said Jackson did not further instruct said grand
jury that they could not find indictment against him, said Judge, for
anything of which he might be guilty in his official capacity.
Second. Said grand jury did not find an indictment against Albert
Jackson, David G. Hicks, Isaac Brand, and Orson Bartlett, jointly, for
gaming. Said Albert Jackson did not conduct himself in a manner
most shamefully partial and corrupt. Said Jackson did not comment
at great length on the testimony in said case. Said Jackson did not
declare, in the presence and hearing of the jury, that the fact charged
in the indictment before the jury did not constitute an indictable
offense; said offense was not proven. Said Jackson did not illustrate
to the jury his views, by a great variety of illustrations, in order to induce the jury to find defendant not guilty.
Third. Said Jackson did not comment on the evidence to the jury,
and instruct the jury as to the law governing the case, in direct contravention to what he knew to be the words of the statute,. in such case
made and provided; did not refuse to allow the jury to find a general
verdict; did not tell the jury that if they found a verdict of guilty, he
would set it aside. Said Jackson did not, by various means, endeavor
to influence the jury to find a verdict of not guilty.
Fourth. Did not manifest a solicitude for the acquittal scarcely becoming an advocate, nor highly disgraceful in a Judge; did not permit said
41
COURT RECORD. 
42                   COR   EOD
Hicks, who was acting as Circuit Attorney, pro tem., to take a nolne prosequi in the cases against Hicks and Jackson; did not know that said
Hicks and Jackson were indicted jointly with said Bartlett; said Hicks
and Jackson were not particeeps criminis. Said Jackson was not guilty of
other acts of shameful partiality and corruption, tending to bring the
tribunals of the country into utter obloquy and contempt.
ART. XVIII. At a Circuit Court begun and held in Stoddard county,
on the third Monday in November, 1857, one Sarah Buckner was not
arraigned on an indictment for murder in the first degree. The said
Albert Jackson did not maliciously and corruptly intend to procure the
conviction of said Sarah Buckner. Said Jackson was not maliciously
guilty of the most shameful oppression, partiality, misconduct, and abuse
of authority in his official capacity:
First. Said Albert Jackson did not prevent William C. Grimsley, a
witness on the part of the State, from detailing any legal and competent testimony he might be possessed of, whether that testimony was in
favor, or whether it was against, the defendant or the plaintiff.
Second. Said Jackson did not exclude competent testimony, on his
own motion, nor on the motion of any one else. Said Jackson did not
privately advise the Circuit Attorney to withdraw the evidence of said
Grimsley; did not permit the Circuit Attorney to withdraw the evidence of Grimsley from the consideration of the jury. Said Jackson
did not prevent counsel for defendant from cross-examining said
Grimsley.
Third. Said Jackson showed no partiality or solicitude for the conviction of said Sarah Buckner. Said Jackson did not take the examineation of witnesses on himself; did not take the management of the
cause out of the hands of the Circuit Attorney; counsel for prisoner
did not except to the course pursued in this matter by the Judge. Said
Jackson was not guilty of gross abuse of official authority and unprecedented oppression.
Fourth. Said Jackson did not refuse counsel for the prisoner any courtesies due them; did not attempt to oppress, harrass, and annoy said
counsel during the trial; did not use insolent, contemptuous, and insulting expressions towards them.
Fifth. Said Jackson did not refuse to allow prisoner's counsel to advert to, or speak of, any evidence that was properly before the jury, in
their arguments in the cause.
tSixth. Said Jackson did not refuse to allow prisoner's counsel to make
illustrations in their arguments; did not repeatedly and vexatiously interrupt said counsel during their arguments. Said Jackson was not so
harsh and insulting as to compel any of said counsel to abandon his
duties in this cause.
Seventh. Said Jackson did not impose wanton and tyrannical restrictions on counsel in arguing said cause for said prisoner; dd not defeat
her constitutional guaranty of being heard by herself and counsel; did
not preclude the possibility of her having a fair trial by an impartial jury.
Said Jackson does not know that trial by jury is the ultimate and
strongest protection of the rights and liberties of the people demands
proof thereof.
Eighth. Said Jackson did not unjustly, corruptly, and cruelly refuse to
sign any true bill of exceptions legally tendered to him by any counsel.
Said Jackson did not refuse counsel for prisoner the privilege of crossexamining Grimsley to the. whole extent of the rules of evidence in
such cases. Said Jackson did not suffer said Grimsley's testimony to
be withdrawn; did not refuse to allow counsel for prisoner to advert to,
or comment on, any testimony which was legitimately before the jury.
42
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COURT RECORDS                 43~~~~~~~~~
Ninth. Said Jackson is guilty of no corrupt and oppressive acts. Said
Jackson showed, nor had, any solicitude whatever for the conviction of
Sarah Buckner; did not act in a manner unbecoming to the character
of a Judge; nor was his course contrary to the law, nor subversive of
justice, nor tending to bring the judiciary of the country into abhorrence and contempt.
The said Albert Jackson says that, for the purpose of having a full
and fair investigation of the whole of the charges, specifications, suppositions, and insinuations contained in said articles of impeachment,
he has denied and negatived each and all of the said charges, specifications, suppositions, conclusions, inferences and inuendoes, or intended
to do so; and if, by oversight or otherwise, he passed over some one or
more of any of the said charges, specifications, conclusions, inferences,
suppositions, or arguments, and not denied them, he claims the right,
when it shall be ascertained, to supply or amend the defect.
And the said Albert Jackson, Judge of the Fifteenth Judicial Circuit
of the State of Missouri, hereby claims the right to further answer these
accusations against him, if this should be found defective and not sufficient for the purpose of enabling him to introduce testimony in his defense to each and every charge, article, specification, declaration, averment, insinuation, inuendo, hypothesis, or argument contained in said
impeachment or accusation against him.
The said Albert Jackson here denies to the House of Representatives
the right to alter, amend, modify, change in any manner, or to withdraw the said articles of impeachment against him. The said Albert
Jackson here denies the right of the House of Representatives to exhibit the said articles of impeachment against him. The House of Representatives have not the right to exhibit articles of impeachment
against a Judge of the State of Missouri for errors, omissions, and mistakes, and irregularities committed in the discharge of his official acts
and duties, whether the same be of practice, of law, of fact, or of judgment, but for misdemeanor in office only. By the constitution of Missouri, a Judge can only be impeached for misdemeanors in office, and
those misdemeanors must first be declared, and the penalty affixed
therefor by an act of the Legislature.
The said Albert Jackson here says, that the said articles of impeachment exhibited against him are not for misdemeanor in office, but for
supposed errors, and mistakes, and omissions, and irregularities of judgment, of law, of fact, or of practice.
The said Albert Jackson therefore says, that the House of Representatives has not the right, and he here, in the name and on the behalf
of the constitution and the laws of the State of Missouri, protests
against their offering proof to all or to any portion of said articles of
impeachment or accusation, for the reason that they do not charge corruption, or fraud, or misdemeanor in office, but allege error,.mistake,
emission, or irregularity only.
ALBERT JACKSON.
Mr. KNOTT, on behalf of the managers, moved that they have time to
consult the House of Representatives on a replication, and that they
be furnished with a copy of the answer of the respondent; which motion was agreed to.
On motion of Mr. PARSONs, and by unanimous consent, it was
Resolved, That one hundred copies of the answer of Albert Jackson to the articles of impeachment exhibited against him, be printed for the use of the Senate, the managers and the respondent.
43
COURT RECORD. 
44                COR   EOD
On motion of Mr. HEDGPETH, and by unanimous consent, it was
Resolved, That the House of Representatives be requested to transmit to the
Senate all the evidence, or a copy thereof, in the possession of the'House, taken
by the Committee on the Judiciary of the House, in investigating charges
against Albert Jackson, Judge of the Fifteenth Judicial Circuit, prior to preferring articles of impeachment against him.
On motion of Mlr. PL.RSONS, and by unanimous consent, it was
Resolved, That the House of Representatives be informed that Albert Jackson
has this day filed his answer to the articles of impeachment exhibited against
him by the House of Representatives, and that time has been given the managers
until Saturday evening at 2 o'clock to consult with the House of Representatives
on a replication, and that they will be furnished with a copy of said answer.
Andfurther, That the Secretary be requested to communicate the foregoing
resolution to the House of Representatives.
On motion of Mr. PARSONS, the Court adjourned until Saturday evening at 2 o'clock.
SATURDAYX, February 19, 1859.
The Court was opened by proclamation.
The managers on the part of the House of Representatives attended,
as also the respondent, Albert Jackson.
The PaESIDENT of the Senate inquired of the managers if the House
of Representatives had agreed upon a replication to the answer of Albert Jackson.  They replied in the affirmative, and the replication of
the House of Representatives was read by Mr. KNOTT, one of the mana
gers, as follows:
Replication by the House of Representatives of the State of Missouri to the An    swer of Albert Jackson, Judge of the Fifteenth Judicial Circuit in said
State, to the Articles of Impeachment exhibited against him by said House
of Representatives.
The House of Representatives of the State of Missouri have considered the answer of Albert Jackson, Judge of the Fifteenth Judicial Circuit of said State, to the articles of impeachment exhibited against him,
by them, in the name of the people of the State, and reply:
That said Albert Jackson hath, in his said answer, endeavored to palliate the enormity of the high crimes and misdemeanors laid to his
charge, by affecting to treat them with indifference, and to evade  the
just consequences of his high-handed infractions of law, and violations
of justice, by an ill-timed exhibition of frivolous levity; that each and
every of said articles is, in every particular, sufficient in law, and true
in fact; that each of said articles specifically charges said Albert Jackson with one or more act of willful and malicious oppression, misconduct, or abuse of authority, in his official capacity; and that said Albert
Jackson is guilty of each and every of the said high crimes and misdemeanors of which he, by said articles, stands accused; and that the
House of Representatives, in full confidence of the truth and justice of
their accusation, and of the necessity of vindicating the purity of the Judiciary, the majesty of the law, and the honor of the State, by bringing
said Albert Jackson to exemplary punishment, do aver their charges
against the said Albert Jackson to be true; and that said Albert Jack
44
COURT RECORD. 
_   f
son is guilty in manner, as he stands impeached; and that the House of
Representatives will be ready to prove their charges against him at such
convenient time and place as shall be appointed for that purpose.
Signed in behalf of said House:
JAS. PROC. KNOTT,
CHARLES H. HARDIN,
Man?agerys.
The replication was then handed to the Secretary to be filed.
Mr. PARSONS thereupon submitted the following motion, which was
considered:
Resolved, That when the High Court of Impeachment, now convened for the
trial of Albert Jackson, Judge of the Fifteenth Judicial Circuit, on articles of
impeachment exhibited against him by the House of Representatives, shall adjourn, it shall be until the first Monday in March next, at 10 o'clock, A. 1,., then
to proceed with the trial of said impeachment.
Mr. McFERnAR  offered the following amendment to the motion:
Resolved, That the Senate will proceed with the trial of the Hon. Albert Jackson, Judge of the Fifteenth Judicial Circuit in this State, on the first Monday in
June next, until which time said cause is continued.
Afterwards, Mr. McFERRAN moved to postpone further consideration
of motion and amendment until 2 o'clock this evening; which was decided in the affirmative, the ayes and noes being taken in pursuance of
law:
AYEs-Messrs. Brown, Byrne, Churchill, Coleman, Fox, Frazier, Gullett, Harris, IHorner, McFerran, McIlvaine, Newland, O'Neil, Richardson, Scott, Thompson, Vernon, Watkins, Wilson, and Wood-20. 
Noss-Messrs. Goodlett, Hedgpeth, Hyer, Johnson, Morris, Parsons, and
Rains-7.
Absent-Messrs. Ialliburton, McFarland, and Wright.
Absent on leave-Messrs. Jones and Robinson.
Sick-Mr. Peyton.
Mr. PARSONxS, from the select committee appointed to draft rules and
forms for the government of the Senate in the trial of the impeachment
case now pending, submitted the following, and recommended their
adoption:
Rules for the Conduct and Manaqement of  Cases of Imipeachment before the
Senate of the State of Missouri.
1. Whensoever the Senate shall receive notice from the House of
Representatives that managers are appointed on their part to conduct
an impeachment against any person, and are directed to carry sich articles to the Senate, the Secretary of the Senate shall immediately inform
the House of Representatives that the Senate is ready to receive the
managers, for the purpose of exhibiting such articles of impeachment,
agreeably to the said notice.
2. Before the articles of impeachment shall be exhibited to the Senate
by the managers, the Secretary shall administer to the President the
following oath or affirmation: "You solemnly swear, (or affirm,) that in
all things pertaining to the trial of, you will impartially
try and determine the charges, and do justice according to law and evidence." The President shall then administer the said oath or affirmation to each Senator present.
45
COURT RECORD. 
46                   COR  REOD
3. When the managers of an impeachment shall be introduced to the
bar of the Senate, and shall signify that they are ready to exhibit articles of impeachment against any person, the President of the Senate
shall direct the Sergeant-at-Arms to make proclamation; who shall, after
making proclamation, repeat the following words: "All persons are
commanded to keep silence on pain of imprisonment, while the Grand
Inquest of the State is exhibiting to the Senate of the State of Missouri
articles of impeachment against." After which the-articles
shall be exhibited, and then the President of the Senate shall inform
the managers that the Senate will take proper order on the subject of
the impeachment, of which due notice shall be given to the House of
Representatives.
4. A summons shall issue, directed to the person impeached, in the
form following:
STATE OF MISSOURI, SS:
The State of lissoui-i to, Greeting;
WHEREAS, The House of Representatives of the State of Missouri did, on the
day of -, exhibit to the Senate articles of impeachment against
you, the said, in the words following:
(Here insert the articles.)
And did demand that you, the said, should be put to answer the accusations as set forth in said articles; and that such proceedings, examinations,
trials, and judgments might be thereupon had as are agreeable to law and justice;
you, the said, are, therefore, hereby summoned to be and appear before the Senate of the State of Missouri, at their chamber in the City of Jefferson, on the     of, then and there to answer to the said articles of impeachment, and then and there to abide by, obey, and perform such orders and
judgments as the Senlate of the State of Missouri shall make in the premises,
according to the constitution and laws of the State of Missouri.
Hereof you are not to fail.
Witness,, President of the Senate thereof, at the City of Jefferson,
this     day of, in the year of our Lord 
Which summons shall be signed by the Secretary of the Senate, and
sealed with their seal, and served by the Sergeanrt-at-Arms to the Senate,
or by such other person as the Senate shall specially appoint for that
purpose, who shall serve the same pursuant to the directions given in
the form next following:
5. A precept shall be endorsed on the said writ of summons, in the
form following, viz:
STATE OF MISSOURI, SS:
The State of Hiissotri to, Greeting:
You are hereby commanded to deliver to, and leave with, if to
be found, a true and attested copy of the within writ of summons, together with
a like copy of this precept, and the articles of impeachment hwewith, showing
him the same; or, in case he cannot, with convenience, be found, you are to
leave true and attested copies of the said summons and precept, and articles of
impeachment, at his dwelling-house or usual place of abode, with some free
white member of the family, over the age of fifteen years; and in whichsoever
way you perform the service, let it be done at least   days before the appearance day mentioned in said writ of suiiimons.  Fail not, and make return of this
writ of summons and precept, with your proceedings thereon endorsed, on or before the appearance day mentioned in the said writ of summons.
Witness,, President of the Senate of the State of Missouri, at the
City ofi Jefferson, this  day of, in the year of our Lord 
Which precept shall be countersigned by the Secretary of the Senate,
and sealed with their seal.
46
COURT RECORD. 
~~~~~~OR   RCR. 
6. Subpenas shall be issued by the President of the Senate, upon the
application of the managers of the impeachment, or of the party impeached, or of his counsel, in the following form, viz:
THE STATE OF MISSOURI,
To, Greeting:
You, and each of you, are hereby commanded to appear before the Senate of
the State of Missouri, on the     day of, at the Senate Chamber in the
City of Jefferson, then and there to testify your knowledge in the cause which
is before the Senate, in which the House of Representatives have impeached
; and hereof fail not.
Witness,, President of the Senate of the State of Missouri, at the
City of Jefferson, this -    day of -, in the year of our Lord -.
Which shall be countersigned by the Secretary of the Senate, and
sealed with their seal. Which subpena shall be directed, in every case,
to the Sergeantat-Arms of the Senate, or to any special messenger appointed by the Senate.
7. The form of direction to the Sergeant-atArms, for service of a subpena, shall be as follows:
SENATE OF THE STATE OF MISSOURI,
To the Sergeant-at-Arms of the State of Missouri:
You are hereby commanded to serve and return the within subpena, according
to law.  Dated at Jefferson City, this     day of, in the year of our Lord
, Secretary of the Senate.
8. The President of the Senate shall direct all the necessary preparations in the Senate Chamber, and all the forms of proceeding while the
Senate are sitting for the purpose of trying an impeachment; and all
forms during the trial, not otherwise specially provided for by the
Senate.
9. On the day appointed for the return of the summons against the
person impeached, the legislative and executive business of the Senate
shall be suspended for the time being, and the Secretary-of the Senate
shall administer the oath to the returning officer, in the form following,
viz: "I,, do solemnly swear that the return made and subscribed
by me, upon the process issued on the      day of, by the Senate
of the State of Missouri, against, is truly made, and that I have
performed said services as therein described; so help me God." Which
oath shall be entered at large on the records.
10. The person impeached shall then be called to appear and answer
the articles of impeachment against him. If he appear, or any person
for him, the appearance shall be recorded, stating particularly if by himself or by agent or attorney, naming the person appearing. and the
capacity in which he appears. If he do not appear, either personally
or by agent or attorney, the same shall be recorded.
11. On the day appointed for the trial of an impeachment, the legislative and executive business of the Senate shall be postponed for the
time being.
12. Counsel for the parties shall be'admitted to appear, and be heard,
upon an impeachment.
13. All motions made by the parties, or their counsel, shall be addressed to the Prosident of the Senate, and if he shall require it, shall be
committed to writing, and read at the Secretary's table; and all decisions
47
COURT RECORD. 
COURT RECORD.
shall be had by ayes and noes, and without debate, which shall be entered on the records.
14. Witnesses shall be sworn in the following form, to-wit: "You -
do swear, (or affirm, as the case may be,) that the evidence you
shall give in the case now pending between the State of Missouri and
,shall be the truth, the whole truth, and nothing but the
truth; so help you God." Which oath shall be administered by the
Secretary.
15. Before the examination of the witnesses against the accused commences, the accused shall, by himself or counsel, have the right to require
all the witnesses in attendance, who shall be called upon to testify, to be
sworn, and be excluded from the court, except the witness who shall be
placed upon the stand to testify; and thereupon no witness, who has
thus been sworn, shall be present during the examination of another
witness, unless the defendant or his counsel shall consent thlereto; and
it shall be the duty of the President of the Senate to advise all the witnesses of this rule; and if any witness, in violation of said rule, shall
enter the court, he shall be deemed to'be in contempt of the court, and
shall be punished as the court shall adjudge. And in like manner, before the witnesses for the accused are Qxamined, they shall, upon demand
of the managers, be sworn and excluded as provided above, in the case
of the witnesses against the accused, and shall in like manner be dealt
with.
16. Witnesses shall be examined by the party producing them, and
then cross-examined in the usual form.
17. If a Senator is called as a witness, he shall be sworn, and give his
testimony standing in his place.
18. If a Senator wishes a question to be put to a witness, it shall be
reduced to writing, and put by the President.
19. At all times, while the Senate is sitting upon the trial of an impeachment, the doors of the Senate Chamber shall be kept open.
20. No person shall be admitted within the bar of the Senate, during
the trial, except the managers, the respondent and his counsel, and witnesses when they are called to testify. This rule shall not apply to the
reporters and officers of the Senate.
21. In all cases not provided for in the foregoing rules, the rules
adopted for the government of the present Senate shall apply.
Ordered, That one hundred copies of the rules, together with one hundred copies of the replication, be printed for the use of the Senate, the
managers, and the respondent.
On motion of Mr. RICHARDSON, the Court adjourned to 2 o'clock, Monday evening next.                                       -
MONDAY, February 21, 1859.
The Court was opened by proclamation.
The managers on the part of the House of Representatives attended,
as also the respondent, Albert Jackson.
The PRIESIDEN-T of the Senate announced the further consideration of
the resolution in reference to the postponement of the trial to some fu
48 
COURT RECORD.
ture  day-, offered by Mr. Parsons on February'19th, together with the
substitute offered by Mr. McFerran, to be in order; when
Mr. FPAZ-ER offered the following amendment to the substitute:
Aimend( by striking out "Jutne," wherever it occurs in the substitute, and inernting "Xo-emlber."
This amendment was considered sand rejected by the following vote,
. ballot being had in pursuance of law:
'AYes —Messrs. Bvrie, Frazier, GuLllett, Thompson, and Vernon-5.
'oBs —Iessrs. Brown, Churchill, Coleman, Fox, Goodlett, HIalliburton, Itar is, Iiedgpethl, Horner, Hyer, lMcFarland, McFerraii, McIlvaine, Morris, Newland, O'Neil, Parsons, Peyton, Rains, RPichardson, Scott, Wa.itkins, Wilson, Wood,
a,nd Wright-2.5.
Ab>~s,,f o, le(ave-Messr. Johnson, Jones, an1d PRobinson.
The cquestion then recurring upon MAr. eIcFerran's amendment by way
of substitute, it was agreed to by the following vote, the yeas and nlays
being taken in pursuance of law:
YEes —Messrs. Brown, Byrne, Churchill, Frazier, Gullett, McFarland, McFerran, McIlvaine, O'Neil, Riehardson, Scott, Thompson, Vernon, Watkins, Wood,
and Wrigh-16.
NaYs-Messrs. Coleman, Fox, Goodlett, Halliburton, liarris, Iedgpeth, Iforner, Iy-er, Morris, B'ewland, Parsons, Peyton, Rains, and Wilson-14.
o.b.c o   lea've —Messrs. Johnson, Jones, and Robinson.
Mir. MouPwrs then moved to indefinitely postpone the original resolution
.s amended: which motion was decided in the negative by the following
ballot:
YEAs-Messrs. Brown, Fox, Harris, Hedgpeth, Horner, McFarland, Morris,
Parsons, Peyton, Rains, and Wilson-11.
NArs-Messrs. Byrne, Churchill, Coleman, Frazier, Goodlett, Gullett, Halliburton, HIyver, MeFerran, McIlvaine, Newland, O'Neil, Richardson, Scott, Thompson, Vernon, Watkins, Wood, and Wright-19.
Abscz;z t ol lcve-Messrs. Johnson, Jones, and Robinson.
The question then recurring on the original resolution as amended,
after discussion,
On motion of Mr. PARSONS, the Court adjourned until 2 o'clock tomorrow evening, by the following vote:
YEAs-Messrs. Brown, Byrne, Fox, Goodlett, Harris, Hedgpeth, Horner, Ilyer,
Meiivaine, Morris, Newland, Parsons, Peyton, Rains, Richardson, Vernon, and
Wilson-17.
NAYs-Messrs. Churchill, Ooleman, Frazier, Gullett, Halliburton, McFarland,
McFerran, O'Neil, Scott, Thompson, Watkins, Wood, and Wright-13.
Absent onz leave-Messrs. Johnson, Jones, and Robinson. 
TuESD-AY, February 22, 1859.
The Court was opened by proclamation.
The manag.,ers on the part of the House of Representatives attended,
as also the respondent, Albert Jackson. 
After deliberation, on motion of Mr. PARsONS, and by una,nimous conent, the Court adjourned until 2 o'clock, P. M.
4
49 
50
COURT RECORD.
WEDVESmDAY, February 23, 1859.
The Court was opened by proclamation.
The managers on the part of the tlouse of Representatives attended.
as also the respondent, Albert Jackson.
On motion of Mr. PLRsoNs,
The resolution offered by him on the 17th inst., in reference to a postponement of the trial of the impeachment, and subsequently amended
on the 21st, by way of substitute, was taken up and considered; when,
On motion of Mir. WATEIls, the Court adjourned to 9 o'clock oly Friday morning next, by the following vote, a ballot being had:
AYEs-Messrs. Brown, Byrne, Churchill, Coleniant, Frazier, Goodlett, Gullett,
liarris, Johnson, Jones, MIcFerran, McIlvaine, O'Neil, Thompson, Watkins,
Wood, and Wright —17.
No,s-Messrs. Fox, Ilalliburton, Iedgpeth, IHormer, Hyer, AIcFaI rland, Morris,
Newland, Parsons, Peyton, Rains, Richard(son, Robinsonx, Vernon, and Wilson-15.
Absent-Mr. Scott.
FPI)Avy, February  2,5, 1859.
The Court was opened by proclamation.
The managers and respondent attended.
The PRESIDENT of the Senate announced the further consideration of
the amended resolution, in reference to the postponement of the trial
of Albert Jackson, to be in order; which was, on motion of Mr. PICCHARDsox, informally passed over.
The rules reported by the select committee, on February 19th, for the
government of the Senate, when sitting as a High Court of Impeachment, were then taken up and adopted by the following vote:
AYF. sMessrs. Brownv, Byrne, Churchill, Coleman, Fox, Frazier, Goodlett,
Gullett, Halliburton, Harris, Hedgpeth, Horner, IIyer, Johb'son, Jones, McFerran, McIlvaine, Morris, Newlard, O'Neil, Parsons, Peytonll, Rains, Richardson,
Scott, Vernon, Watkins, and Wood.
NOES-Messrs. Robinson and Wright.
Absent-Messrs. McFarland and Wilson.
Sick-Mr. Thompson.
Mr. RICHARDSON offered the following resolution:
-esolved, That James L. Jones is hereby appointed a special messenger  to
serve subpenas, and such other process as may be required of him by the Senate,
in the case of the impeachment against Albert Jackson, now pending before the
Senate.
For which, after it was read,
Mr. JONES offered the following substitute:
Resolved, That Benjamin F. Jeffries be appointed a special messenger, whose
duty it shall be to serve and execute all subpenras and other process that may
be issued in the case of impeachment now pending in the Senate against Judge
Albert Jackson, Judge of the Fifteenth Judicial Circuit.
Mr. PA0RSO'S moved to amend the substitute by inserting the name of
William Yanover after that of Benjamin F. Jeffries. 
Mr. NEWLAND moved to lay both the original resolution  and substitute on the table; which motion was decided in the affirmative by the
following vote:
AYEs-Messrs. Byrne, Churchill, Coleman, Frazier, Harris, I-Horner, Hyer,
Johnson, McFerran, McIlvaine, Morris, Newland, Rains, Scott, Vernon, Watkins, Wood, and Wright-18.
NOEs-Messrs, Brown, Fox, Goodlett, Gullett, Ilalliburton, Iedgpeth, Jones,
McFarland, O'Neil, Parsons, Peyton, Richardson, and Robinson-13.
Absent-Mr. Wilson.
Absent on lea,ve-Mr. Thompson.
The amended resolution, postponing further proceedings in the trial
until the first Monday in June next, which had been informally passed
over, was then taken up and passed by the following vote:
AYss —Messrs. Brown, Byrne, Churchill, Frazier, Gullett, HIedgpeth, ilorner,
Johnson, Jones, McFarland, MeFerran, McIlvaine, Rains, Scott, Vernon, Watkins, and Wood-17.
N oEs-Messrs. Coleman, Fox, Goodlett, HIalliburton, I-Iarris, Hyer, Morris,
Newland, Parsons, Peyton, Robinson, and Wright-12.
Ab.sent-Messrs. O'Neil, Richardson, and Wilson.
Absent on leavec-Mr. Thompson.
On motion of Mr. NEWLAND,  the  hligh Court of TImpeachlmelnt
adjourned until the first Monday in June next.
51
COURT RECORD. 
IN  TIA t3E SENATE.
Sx-UPRDAY, Feblruary 1",) 1,.
('- nl,ot on of Mir. RIcH.umnsoN, it was
]ilesoc',   That the Committee on the Judiciary be instructed  to inquire
wvhethler,  -nder the constitution, the Legislature can pass an act authori-zing th
Senate to try the case of impeachment of the Hon. A. Jacksoi after the Legis.iastue Sh. l have adcljourned site die, and report to the Senate by bill or othter,vise.
MO-xDAp~ February 2)l, 1185.
BEIG I'xMsoxs, from  the Judiciary Committee, to whom haId been reearted a resolution of the Senate directing said committee to inquire iin
relation to the constitutional power of the G-eneral Assembly to past a
law authorizing the Senate to remain in session to sit as a Court of Impeachment after the adjournment, sine die, of the House of I'epresentativ'es; subnlitted the following report in relation thereto:
Mir. Pazir-;-T xr: The Comymittee on the Judiciary, to which was refelrred a resoIition o' inquiry in relation to the constitutional power of the General Assein'bly to p)as a law authorizing the Senate to remain in session to try the case of
inspeachment, now pending against the Hon. Albert Jackson, after the adjourlnixnent, silt d;i, of the House of Representatives, have had the same under consideration, and have instructed me to report. The committee have investigated
tthe question, and are somewvhat divided as to whether, under the constitution,
the Legislature has any power to pass a law authorizing the Selnate to remain in
session after a final adjouirnment of the House of Representatives; and as the
,iuestlon is one of importance, the committee are of opinion that it would be
most prudent not to undertake to exercise a doubtful right.
PARSONS, C(tairr'ia;,.
The report was read and made the special order for to-day, at 2 o'clock,
TUESDAY,x, Febrilary 22, 1859..
tn motion the regular order of business was dispensed with; when
[fr. RcCHARDSON' offered the following concurrent resolution:
~clo~vead by the Seiate, the.IO?tsc of Re)resentatives concurrisg thlemei,, That,
wvhen the two Houses adjourn on the          Monday in MIarch  next, the Senate
shall stand adjourned until the first Monday in June next, at which time it shall
meet for the purpose of trying the case of Albert Jackson, Judge of the Fifteenth
Judicial Circuit, upon the impl)eachmnent preferred against him by the House of
Representatives; and the House of Representatives shall stand adjourned until
the fourth Monday in July next, on which last mentioned day the twoc Ifouses
shall stand a,djourned.size die, by virtue of this resolution.
-1 4. 
SENATE PROCEEDI\GS. 
The resolution was read a first and second time; when
Air. WATKIN'S proposed to fill the blank with "first.'"
MIt. WILSON  proposed to fill the blank with "second;"' which wa
ag,reed to by the following vote, the ayes and noes being demanded I
Tr. Halliburton:
AYES —Messrs.  Fox, Ialliburton, I-Iarris, Itedgpeth, Itorner, t er,  Mcl
vaine, Morris, -Newland, Peyton, Rains, RPichardson, Thompson,  Wilson, an.(
'Wright-l5.
Nors-MIessrs. Brown, Byrne,!oleman, Frazier, Gullett, McFarlni, MeFei
an, Scott, Vernon, Watkins, and Wood-il.
Albseit —Messrs. Churchill, Goodlett, O'Neil, an:d Parsons.
Absc?t oi lce-vc-M-essrs. Johnson, Jones, and Robinson.
Mr. MoRnms then offered the following amendment to the resolIution
Strike oiut "first MIonday in JuLne," and insert "third Tuesday ini Marci.'
The amendment was read a first and second time, and disagreed toc
by the following vrote, the ayes and noes being demanded by Mfr. BIcFerran:
AYES-Messr.s. (ChuLrchill, Coleman, Fox, Goodlett, IHalliburton, H:s]s, Hedpr)eth, lltyer, Morris, Newland, Peyton, and Wilson-12,
No:s-Messrs. Birown, Byrne, Frazier, Gullett, Horner, McFerrai,  /McIlvaile.
O'Neil, Rains, Richardson,  Scott, Thompson, Vernon, Watkins, W(od,,,ci
Wr1ight-16.
Ab.,c t-Messrs. MIFarlaidcl and Parsons.
AbsePl' on / e'-Messrs. Johnson, Jones, and(I Robinson.
Mr. THOMISON  then offered the following amendment to tie resolution:
Strike out' 1firt -Monday in June," amid insert " first Mo(ndav in Novembe'r."
The amtendment was read a first and second time, and disagreed to
by the following vote, the ayes and noes being demanded by  5{r. Ilalliburton:
AYEs —Messrs.  Byrne, Fox, Frazier, Gullett, Ilalliburtonl,             Nyew, elan(i,
Rains, Scott, Thompson, and Vernon-l.
NoEs —Messrs. Brown, Churchill, Colerman, Goodlett, Hlarris, Ifedgpeth, 1-Hornier, McFarland, McFerran, McIlevaine, Morris, O'Neil, Peyton, Ricmrl;< c
Watkins, Wilson, and Wood —18.
Abse.-tt-Mr. Parsons.
Ab,sct  on leave-Messrs. Johnson, Jones, and Pobinisoi.
The question then being upon the adoption of the resolutionl.
It was decided in the affirmative by the following vote, theayes  an1e
noes being, demanrded by MNr. Ilalliburton:
AYEs —Messrs. Brown-, Byrne, Churchill, Coleman, Frazier, (nullei, Jedgpeth,
H-orner, MIcFarland,  IeFerran, Mcllvaine, O'Neil, Richlrdson,u Scott, Thompson, Vernon, Watkins, Wilson, Wood, and Wrigiht-20.
NoEs-Messr.s. Fox, Goodlett, Hialliburton, tIarris, Iyer, 5orris, Newlanl,
Peyton, and Rains-9.
4tba.se.  J-M.sr. Parsons.
Ab.Inil oi le (ce-Messrs. Johnson, Jones, and Robinson.
[The foregoing resolution in relation to the adjournment,t anl trial
was laid upon tlhe table in the JIouse of ]Representatives, on Wcednesdays
February 23d.]
-11
o.) 
SENATE PROCEEDINGS.
THURS-DAY, February 23, 1859.
The following message from the I-House of Representatives was received, through Mr. Love, Assistant Clerk:
Mr. PRESIDENT: I am instructed by the IHouse of Represenitatives to inform
the Senate that the IIouse has adopted the following resolution:
Resolved by the Seneate and House of Repieseetatives, That the two HIouses will
adjourn on the second Monday ill March next, and stand adjourned until the
fourth Monday in ~'oveinber of this year.
On motion of Mr. WIL.sOl, the above resolution of the Iouse was
taken up, read a first and second time, and, the question being on its
adoption,
Mr. Ronr'sox demanded the ayes and noes.  Before the vote was
taken,
Mr. MORaIS moved its postponement until to-morrow morning, at 9
o'clock; which motion was disagreed to.
The question then recurring upon the adoption of the resolution, it
was decided in the negative by the following vote:
AYES-Messrs. Churchill, Coleman, Gullett, Hedgpeth, Ityer, Johnson, Jones,
McFerran, McIlvaine, O'Neil, Thompson, and Vernon-12.
NoEs-Messrs. Brown, Byrne, Fox, Frazier, Goodlett, Halliburton, Harris,
Horner, Morris, Newland, Peyton, Rains, Richardson, Robinson, Watkins, Wilson, and Wood-17.
Absent-Messrs. McFarland, Scott, and Wright.
Absent on leave-Mr. Parsons.
Mr. MORRIS moved to reconsider the vote rejecting the resolution, and
moved to lay the vote to reconsider on the table; and, after debate on
point of order, Mr. Morris withdrew both motions.
Mr. WILSON then renewed the motion to reconsider the vote.
Mr. MORRIS moved  to lay Mr. Wilson's motion on the table; which
was decided in the negative by the following vote, the ayes and noes
being demanded by Mr. McFerran:
AYES-Messrs. Brown, Fox, Goodlett, Halliburton, IIarris, Morris, Peyton,
and Robinson-8.
NOES-Messrs. Byrne, Churchill, Coleman, Frazier, Gu]lett, Hedgpeth, Horner, Hyer, Johnson, Jones, MeFerran, McIlvaine, Newland, O'Neil, Rains,
Richardson, Thompson, Vernon, Watkins, Wilson, and Wood-21.
Abseot —Messrs. McFarland, Scott, and Wright.
Absent on leave-Mr. Parsons.
The question then being on the reconsideration of the voie rejecting
the resolution, it was decided in the affirmative by the following vote,
the ayes and noes being demanded by -Mr. Robinson:
AYES-Messrs. Byrne, Churchill, Coleman, Frazier, Gullett, Itedgpeth, Hyer,
Johnson, Jones, McFerran, MIcIlvaiine, Newland, O'Neil, Riciardson, Thompsen, Vernon, Watkins, Wilson, and Wood-19.
NoEs-Messrs. Brown, Fox, Goodlett, Halliburton, IHarris, Horner, Morris,
Peyton, Rains, and Robinison-10.
Abseat-Messrs. McFarland, Scott, and Wright.
Absent oit leave-Mr. Parsons.
The Senate having agreed to the reconsideration of the resolution,
the question then was on its adoption; when
54 
SENATE PROCEEDINGS.
Mr. WILSONX offered the following amendment:
Provided, however, That when the Senate adjourn on the socond Monday in
March, it shall stand adjourned until the first Monday in June next, and proceed with the trial of the case of impeachment now pending against the lion.
Albert Jackson, Judge of the Fifteenth Judicial Circuit, and continue in session
from day to day until said trial shall be completed, and then adjourn over until
the fourth Monday in November next.
The amendment was read a first and second time, and agreed to; and
the resolution, as amended, was then passed by the following vote, the
ayes and noes being demanded by Mir. Halliburton:
AYES-Messrs. Byrne, Churchill, Coleman, Frazier, Gullett, iedgpeth, Hyer,
Johnson, Jones, McFerran, McIlvaine, O'Neil, Scott, Thompson, Watkins, Wilson, and Wood-17.
NoEs —Messrs. Brown, Fox, Goodlett, Hlalliburton, Harris, iorner, Morris,
Newland, Peyton, Rains, Richardson, Robinson, and Vernon-13.
Absent-Messrs. McFarland and Wright.
Absent on leave-Mr. Parsons.
MONDAY, March 14, 1859.
Ir. HEDGPETH offered the following resolution:
Resolved, That during the session of the Senate as a Court, they will only require the services of the Secretary, Assistant Secretary, Doorkeeper, and Sergeant-at-Arms.
The resolution was read a first and second time; when
Mr. Jonxso- offered the following substitute for the resolution:
Desolt,ed, That when the Senate shall mneet in June, to try the impeachment
case of Judge Jackson, it shall retain the following officers, to wit: Secretary,
Assistant Secretary, Sergeant-at-Arms, Doorkeeper, and Pages. The Senate,
when met as a Court, shall have the right to appoint two stenographers, or phonographic reporters, and to order the printing of such matter as it may deem
necessary.
The substitute was read a first and second time, and adopted.
55  
TR I AL.
HIGH COURT OF IMPEACHMIENT.
STATE OF MI SSOURI vs. ALBERT JACKSON.
FIRST DAY.
MoxDAY, June 6 1859.
The Court having met pursuant to adjournment, the roll was called,
when the following Senators answered to their names:  Miessrs. Brown,
Byrne, Churchill, Frazier, Goodclett, Gullett, HIlalliburton, Iarris, Hedg peth, Horner, McFarland, McFerran, Newland, Rains, Richardson, Scott,
T Vernon, Wilson, Wood, and Wright.
A quorum being present, the Court was opened by proclamation, and
the Journal of the previous proceedings read.
Mr. HARDIN, on behalf of the managers, moved that attachments issue against MAessrs. Davis, Bedford, Pipkin, and Fox, witnesses subpenaed on the part of the State and not appearing; and that an alias
subpena issue for Mlatthew H. Moore; and that a special messenger be
immnediately dispatched to execute said attachments and subpena;
which was ordered by the following vote, a ballot being had in pursuance
of law:
AYES-Messrs. Brown, Byrne, Churchill, Frazier, Goodlett, Gullett, Ilalliburton, Harris, Horner, McFarland, McFerran, Newland, Rains, Richardson,
Scott, Vernon, YWilson, Wood, and Wright-19.
NoEs-Mr. Hedgpeth.
Absent-Messrs. Coleman, Fox, Hyer, Johnson, Jones, McIlvaine, Morris,
O'Neil, Parsons, Peyton, Robinson, Thompson, and Watkinss.
The respondent, on leave, filed the following objections against further
. proceedings against hinm:
LI  the Case of ILpeachnment of Albert  Jackson, Judge of the Fiftcent  Julicitl
Circtuit, beforie the Senate of Afissouri, June 6th, 1859:
There having been thirty-three Senators present and sworn in this case, and
there being but twenty now in attendance, the said Albert Jackson, Judge of the
Fifteenth Judicial Circuit, objects to any proceedings which may be taken until
the whole number present shall answer to their names.
[Signed,]                        ALBERT  JACKSON.
SENATOR CHURCHILL offered the following resolution:
Resolived, That the President of the Senate is hereby authorized and required
to appoint two stenographers, or phonographic reporters, to report the proceedings and testimony ili the trial now pending before the Senate. 
HIGH COURT OF IMPEACHMENT.
This resolution was adopted by the following vote:
AYES-Messrs. Brown, Byrne, Churchill, Goodlett, Halliburton, Harris, Hedg peth, HIornler, McFerran, Newland, Rains, Richardson, Scott, Vernon, Wilson,
Wood, and Wright-17.
NiOES-Messrs. Frazier, Gullett, and McFarland-3.
Absent-Messrs. Coleman, Fox, Hyer, Johnson, Jones, McIlvaine, Morris,
O'Ncil, Parsons, Peyton, Robinson, Thompson, and Watkins.
On motion of SEIATOR NEwFLAND, it WatS
Resolved, That the Senate adopt, as its regular hours of meeting while sitting
as a High Court of Impeachment, 8 o'clock in the forenoon, and 3 o'clock in the
afternoon.
On motion of SENATOR SCOTT, the Court then adjourned until 8 o'clock
to-morrow morning.
SECOND DAY.
TUEsDAY, June 7, 1859.
The Court met pursuant to adjournment, and was opened by proclamation.
The managers and respondent attended.
On motion of SENATOR GOODLETT, the roll was called, and the following Senators, noted as being absent yesterday, answered to their names:
Messrs. Coleman, McIlvaine, Morris, O'Neil, and Thompson.
The PRESIDENT of the Senate announced that two stenographers
could be procured, in pursuance of the resolution passed on yesterday,
empowering him to employ them, and requested the Senate to fix the
compensation; whereupon
SENATOR WRIGHT moved a reconsideration of the vote adopting said
resolution; which motion was agreed to by the following vote:
AYzs-Messrs. Brown, Byrne, Coleman, Frazier, Goodlett, Gullett, Horner,
fMcFarland, McFerran, Morris, O'Neil, Parsons, Rains, Richardson, Scott, Vernon, Wilson, Wood, and Wright-] 9.
NOEs-Messrs. Churchill, Halliburton, Harris, Ifedgpeth, McIlvaine, Newland, Peyton, and Thompson-8.
Absent-Messrs. Fox, Hyer, Johnson, Jones, Robinson, and Watkins.
SEN,ATOR CHURCHILL then moved to amend by striking out the word
"two," where it occurs in the resolution, and inserting "one."
This amendment was agreed to by the following vote:
AYES-Messrs. Brown, Byrne, Churchill, Coleman, Goodlett, Halliburton,
Horner, McIlvaine, Morris, O'Neil, Parsons, Peyton, Rains, Ric]rdson, Scott,
Thompson, and Wilson-17.
NoEs —Messrs. Frazier, Gullett, Harris, Hedgpeth, McFarland, McFerran,
Newland, Vernon, Wood, and Wright-10.
Absent-Messrs. Fox, Hyer, Johnson, Jones, Robinson, and Watkins.
The question then being upon the passage of the resolution as amended, it was decided in the affirmative by the following vote:
AyEs-Messrs.  Brown, Byrne, Churchill, Coleman, Halliburton, Harris,
Hedgpeth, Horner, McIlvaine, Morris, O'Neil, Parsons, Peyton, Rains, Richardson, Scott, Thompson, and Wilson-18.
NoEs-Messrs. Frazier, Goodlett, Gullett, McFarland, McFerran, Newland,
Vernon, Wood, and Wright-9.
Absent-Messrs. Fox, Hyer, Johnson, Jones, Robinson, and Watk.ns.
58 
HIGH COURT OF IMPEACHMENT.
The PRESIDENT of the Senate, in pursuance of the resolution thus
passed, employed Thomas J. Henderson to make the required report of
the proceedings and evidence, and announced the same from the chair.
SENATOR SCOTT moved a call of the Senate, which was ordered, and
the following Senators noted as being absent without leave: Messrs.
Fox, Hyer, Johnson, Jones, Robinson, and Watkins.
On motion of SE..NATOR SCOTT, further proceedings under the call were
dispensed with.
JUDGE JAcKson0- said he wished the following to be filed and acted
upon:
Case of Albert JackAson, Juedye of the F'ifteenth Judicial Ci,rcuit, before the Sez;   ate, sittiig in Ii'peachaeint:
The said Albert Jackson asks that the managers in this case b)e ordered to
specify, in lwriting, the cause or causes, or in other words, the offense or offenses,
in plain, distinct, and legal language,. upon which they intend to offer evidence
in this case.                  Signed,]
ALBERT JACKSON.
Mr. HARDIN said that such a motion as this was without precedent or
authority of law: was out of order, and he did not think it should be,
or could be, entertained. The articles of impeachment, the answer
and replication thereto, having been filed, it certainly was unnecessary
to make a synopsis of the offenses charged; and since such a motion was
without any precedent. authority, or utility, he must object to its being
sustained.
JUDGE JACKso, proceeded to discuss his motion at length.  He did
not know, he said, that an argument based upon precedent would apply in this case. He believed the history of the world could not fuirnish
a parallel for its inception and progress thus far. Notwithstanding he
was arraigned before the Senate, no offense was charged against himat least no offense cognizable before this body. If he had done anything that the constitution or laws prohibited him from doing, he wanted
to know it-what it was exactly-and the triers of the cause should
also be thus informed. Take the constitution and laws, and if a single
infraction of them could be found in his official conduct, let that illfraction be pointed out specifically. He held that this had not been.
done. A most egregious mistake had been made, both in the paper
drawn up at the starting of this proceeding, and in the articles of impeachment-they were twin children, and had a strongly marked paternity. It seemed to have been the object merely to hurt his feelings by
abusive epithets, rather than to charge him with any offense against
the laws. He should find an opportunity to speak of the vituperation
heaped upon him, and should speak of it without being mealy-mouthed
himself; but at present it was necessary to find some question of fact
or some issue of law to try. The gentlemen claimed that their pleadings were backed by precedent. On the contrary, he thought them unprecedentedly abusive. Every charge, whether it constituted a legal
offense, if proved or not, was stated in the strongest terms possible, and
was intensified by adjectives ad libitum. He asked Senators to look at
the language of the instrument paraded here against him.  On every
page he was charged with high crimes and misdemeanors, but the specifications to support these general allegations consisted simply in personal abuse. Neither the Judiciary Committee, nor the House, nor
managers, had any right to thus speak of and treat him. When they
undertook to prepare charges against him, they could not do anything
more without transcending their powers, and this last they had certainly
done
59 
IIIGH COURT OF IMPEACH.NIMENT.
Hie had heard, last winter, in tile Itouse of Representatives, a nmember of that body claiming that, in this case, either the House was a grand
jury, or the Judiciary Committee was a grand jury.  This was certainly
a silly position.  Yet it had been assumed to be correct, and it hadt been
acted upon.  Now, what right had the House of Representatives to sit
as a grand jury?  He read the second article of the constitution of
the State of Missouri concerning the distribution of the powers of
government, and claimed that it plainly prohibited thie exercise of any
such power by either branch of the Legislature.  The functions of a
grand jury were juc1 ia[ to all intents and purposes; and yet the Legislature, or a branch of it. had presumed to exercise these judicial functions, notwithstanding each member of' the xeneral Assembly had taken
a solemn oath to suppiort the constitution, which prohibited it.  What
was that oath for?  If there was anything in the oath taken by a nmember of the House, it was an obligation not to interfere with the coordinlate branches of the government; and it must forbid the House, or
any portion of it, to sit as a grand jury.  The gentlenman to whom  he
had alluded —Mr. Fitz, he believed, was his name  SENATORP SCOTT.  I must call thie gentlemian to order.  I conceive it
out of order for the gentleman nowv to go into a history of either the
case, the constitution, or any such matter. And I think it out of order
to use language here d(rogatory to the coolidinate branch of this
Legislature.  I call him to order now, and I expect to do so again, when
I see a similar course pursued by him, in derogation of le,gal and parliamentary principles.  Itere, le has not only started an argument on
his motion, but seems to be going into a general exposition of Ihis views
of the constitution and government. besides giving us a history of the
case in hand.  I expect both him  and the managers to treat the
Senate with more res,pect than sulch a course implies, and I  shall onsider them in coutempt if they fail to do so.
[The Senator wvas here interrupted by Judge Jackson, anld a short
colloquy occurred, which is omitted for want of relevancy.]
JUDGE JACKSON continued his remarks.  He had not, he said, intended
any disrespect, and did not think he was in contempt of the tribunal
before which he was to be tried.  ile wanted to talk plainly.  He was
charged with grave offenses. and he wias not to be intimidated in defending himself'against them.  It was necessary for him to speak of
the constitution, fobr Iby it hle ought to be and wished to be tried. And
what did that constitution say in regard to impeachments?  It said
that "all Judges of the courts of law and equity shall be liable to inmpeachment for any misdemeanor in office."  Now, as he was arraigned
here under proceedings styled impeachment, was it too much to ask
that those who thus arraigned him should specify, in plain and precise
terms, the particular misdemeanor for which lie was to be tried?
Hle could conceive of but two classes of impeachable offenses.  It was
well to remember that our present law on the subject wa~ made when
Judges held their offices almost by life tenures. Now the people had it
in their power to remove any Judge almost at their pleasure, and this
was a good reason for relaxing the old laws on the subject. Our constitution, however, still permitted Judges to be impeached for misdemeanors in office.   The constitution of the United States provided that
Judges and all civil officers could be inmpieached for treason bribery, or
other high crimes and misdemeanors.  Tli ere, he said, was the only
substantial basis for this proceeding against himi. and it was a wrong basis. There, and not from the constitution of our own State, was where
the words "high crimes and misdemeanors" were found.  There was to
be found all that portion of the articles not derived from  the trial of
WVarren Hastings,-whence niost schoou14oys got their idceas about i~rn
60 
HIGH COUPRT OF IMIPEACIIMENT.
-eachnients.  It must be evident, as he had before said, that a most
egregious blunder had been made here.  In this State, under the constktution of Missouri, a Judge could be impeached only for misdemeanors. Does this document (the articles of impeachment) set forth any
m1isdemeanors?  It is profuse in general and vague charges of ]ij(hI crimecs;
but does it charge and set forth any misdemeanors?  What violation
of constitutional or statute law is complainecl of?  The  constitution
providcles that Circuit Judges shall reside within their circuits; that they
shall be at least thirty and not over sixty-five years of age; that they
Shall take an oath of office, and do other particular things mentioned.
N ow, if a Circuit Judge were to disregard any of these provisions, although it  would be no high crime,-no crime at all in itself considered,
it w ould be a misdemeanor, and would be ground of impeachment.
Nothing of this kind, however, is charged.   But go further,-take the
statiutes, aind in them we find a law prohibiting the Judge from practicing law.  Now it is no sin or crime to practice law, as, in like manner, it is no heinous matter to be under thirty or over sixty-five years of
age. But these things have been supposed to be incompatible with the
office of Judge; and hence, if they are disregarded or violated, the
Judge can be arraigned for a misdemneanor.  If any charge of this nature was to be brought against him, now, in hisi opinion, was the time to
do it.
He could admit but one other class of offenses punishable by impeachment.  If a Judg,e were (aonv;icte( of an infamous crime, he might afterwards be impeached.  In all such cases, the intervention of a jury was
necessary.  In this State, every man, be he Judge or what not, had an
inviolate right to a trial by jury of every infamous cfime charged upon
him. Our own State constitution not only provides generally that the
right of trial by jury shall remain inviolate, but further says that no
person can, for an indictable offense, be proceeded against criminally by
information,-with certain exceptions which could not by any possible
construction include the case in hand.  He asked the Senators if they
could in the face of this plain constitutional provision proceed to try
him for an idrtictaisle offense,-for an infamous crime?  Certainly they
could not. The Senate was not, in contemplation of law, a jury. There
might be in some of its exercises a remote semblance to the functions
of a jury; but the Senate was not and could not be such a jury as was
contemplated by the constitution. If they were to adjudicate an impeachment case in which an infamous crime was involved, they could only examine the record of some criminal court to ascertain whether a
coavict'iot for this offense had taken place.  They could not try the fact
whether a crime had been committed. They could only inquire whether
there was a conviction. If so, that conviction incapacitated the accused
for office, and the impeachment could be sustained-otherwise it could
not. It was true that in operating under the laws of our general government, against United States otficers, the same rule might wot apply.
The constitution of the United States provided that "the trial of all
crimes, ec.cept in cases of impeachment, shall be by jury."   But in the
constitution of the State of Missouri no such exception existed, and
there was no provision for trying the question as to the guilt or innocence of a man accused of an infamous crime, except by presentment
and indictment in a regularly constituted criminal court.  If it was alleged that he had been guilty of an infamous crime, and that he had
been convicted of the same, let those allegations appear in plain and
distinct language. and he would meet them with a defense. But if all
the allegations against him turned out to be upon matters not in themselves impeachable, he would clear his hands at once of the iniquity of
protracting this trial. For his own part, leaving out of view his duty
61 
HIGH COURT OF IMPEACHMENT.
as Judge, and laying aside his regard for the organic law of the land, he
would be willing to accept any issue tendered him. Hle was ready for a
trial of the question whether his conduct had been proper or improper,
decorous or indecorous; but he did not conceive that the public weal
demanded that the differences of opinion and personal animosities ex isting between himself and his enemies should be passed upon in this
manner; and he would only be a party to such a proceeding, illegal and
void in itself, for the protection of his reputation as a manl and a Judge.
In his official capacity he had made certain decisions.  Would it be
pretended that the Senate could review them, or must the Supreme
Court do that? It might be that in some instances he had done wrong.
Errors he may have committed.  But the question was whether he had
committed any wrong knowingly, willfully, and corruptly. In short,
was any corruption, not error, charged.  Ile contended that none was,
and he now called upon the managers to state plainly wherein he had
been guilty of corruption. The Senate could try that question. It
could not undertake to say whether he had committed errors. Senators
were no more to be the judges of his official conduct thain he was to be
of theirs. It would be no greater usurpation of power to indict a Senator for passing or assisting to pass an unconstitutional law, than to im.peach a Judge for errors in his judgments. How he had changed venues,
told lawyers to sit down, discharged prisoners under writs of habeas corpos, attached parties for contempt, caused bills of exceptions to be prepared, and so on-what was all that to Senators? Wlhat was it to this
court whether hlie had been polite or impolite  while on the bench? For
all such things he was responsible to the people of the Fifteenth Judicial Circuit alone. If they did not like his manner of doing business,
they had an easy and expeditious means of ousting him from the bench.
They had only to express their preference for another at the polls.
But it was unreasonable and unjust to arraign him for such things before the Senate of Missouri.  Ile could admit all that was alleged
against him here with safety.  If the things said about him in the
articles of impeachment were in fact true, he would be perfectly willing
to admit them. Something more was required for the purposes of the
trial, and for that something he now asked.  No issue could be made
upon the articles of impeachment, and he was unacquainted with the
legal procedure to be denominated a trial unless there was an actual,
substantial, and palpable issue. lHe asked, then, that the motion which
he had filed be sustained.
Mr. HIARDIN said that he had listened with patience to the gentleman's
speech; but he was not able, even with much charitable construction, to
admit a single one of his positions to be tenable. As he had before remarked, the motion was without precedent. The respondent here was
asking something which no one ever before asked, and which would do
him no good if granted. Neither under our constitution nor law, nor
under any other system, could authority for this procedure be found.
The respondent could not in this manner, or in any other, demur to the
articles of impeachment.  It was, in his view, an exclu, ive constitutional
prerogative of the House of Representatives to impeach.  It was the
duty of the Senate to try the impeachment, and it could not prescribe
the form or substance of the charges preferred against any respondent
The whole of the gentleman's argument, if argument it could be called
rested upon the presumption that the Senate had the power of an ordinary court trying a civil action to direct the manner in which an issue
should be made up, when the bare statement of this proposition would
be a sufficient refutation. The objections to the motion, he said, were
so palpable that he would simply ask that it be voted down, and that
the cause proceed.
62 
HIGH COURT OF IMPEACHMENT.
JUDGE JACKSON commenced a reply to the remarks of Mr. Hardin,
but was interrupted by the latter, and a question raised as to his right
to speak on the subject at this time. He finally yielded the floor;
when
Mr. KNOTT said that he had refrained from the discussion of this
point up to the present time, because he wished to avoid even the appearance of captiousness.  But he wished it understood that the mana
gers simply took this impregnable position in regard to the question
raised by the paper filed by the respondent; namely, that the motion
was out of order, irregular, unauthorized by law or precedent, uncalled
for by any facts or circumstances, and void even if sustained by this
court. The House of Representatives had impeached the respondent,
and in support of that impeachment had filed here articles with specific
and detailed allegations of high crimes and misdemeanors.  In due
time and form the respondent was brought to the bar of this court.
When asked for his answer, he produced a statement of reasons why
he should not be held to answer, asked that they be filed, and argued
his propositions at length. They were subsequently overruled, or rather
withdrawn, upon an intimation that they would be overruled. He
then answered, and in his answer traversed the material allegations of
the articles of impeachment, in some instances affecting to treat them
with indifference and levity, and averring their insufficiency in law to
support an impeachment. Then came the replication, in which the
House of Representatives averred the sufficiency of the articles as well
as their truth. Here, then, the issue was completely made up. Certain
offenses were alleged and denied. Nothing more explicit was desirable
or could be attained. That the respondent had seen the foibrce of the
charges preferred against him, and that he was fully apprised of their
nature, was evidenced by his admission this morning that serious
charges were made against him.
JUDGE JACKSON.  I never admitted, this morning nor at any other time,
that seriouis charges had been made against me. I have been careful not
to make such an admission.
Mr. K.NOTT.  I repeat, and can substantiate what I say, that the respondent stated in his reply to the Senator from Buchanan, [ScoTT,]
that serious or grave charges-perhapsgrave was the word-were alleged
against him. Be this as it may, however, it is too plain for argument,
that, after the replication in this case was filed, the issue was made up.
At that point all the law and reason bearing upon the case demanded
that the pleadings should be concluded, and they were so concluded. I
regard the gentleman's motion as nothing more nor less than a pin upon
which to hang a harangue, the substance of which has been already delivered before this Court upon one or two other occasions. I would be
willing to grant all he asks, if I did not know, from an examination of
all the precedents, not only that such a thing was never contemplated
by the law, but that in this case we already have a most elaborate statement of the charges against the respondent, infinitely better, for the
purposes of this trial, than any such summary or synopsis as is called for
by his motion. Holding the motion to be irregular and wholly out of
order, I can only ask that it be voted down at once, without further discussion.
Mr. PRESIDE.NT. The motion must be sustained or overruled by the
Senate. Is the Senate ready for action upon it?
SENATOR PARSONS. For the purpose of bringing the matter to issue at
once, I move that the motion filed by the respondent be overruled.
JUDGE JACKSON. The Senate will bear with me a moment. This is it:
I have filed the motion not for my own advantage. I don't care whether
you proceed in this way or not.  But if this is to be a trial, you will have
63 
HIGHII COURT OF I[PEAOIC1MENT.
to have something to try, and as yet there is nothing of the kind here.
I do not want to take advantage of this to stop the prosecution, for I
want it to go on; but I must do my duty in objecting to what is wrong
and illegal. And I may say here that the same motives governed me
in filing the objection yesterday to the Senate proceeding with the case
without all the Senators who have been sworn.  The law expressly says
that no member shall sit or give his vote until he has been sworn, and
the plain implication is that all who are sworn must try the case.  The
managers seemed to be tender-footed on this point.  Ihow much it interferes with their plans I won't undertake to say.
Mr. Knott tells us that the articles of impeachment, the answer, and
the replication have all been successively filed, and the issue is made up.
If it is made up, I want them to point out what it is. The law says that
after all this which we know has been done, "and w( e/Aen the issue shall
be joined on any such impeachment, the Court shall appoint a time for
the trial thereof." Now, what are the issues? I hold that none are presented, and although they should have been made up before this time,
I am willing to waive this irregularity and make up an issue now. The
law in this case explicitly requires issue to be joined. It has not been
done.  Now if they have anything to allege against me-if they can at
this late day hatch up anything-I am ready to meet it. I am ready to
answer for every judicial and every private act of my life, if it is necessary, beiore any tribunal having jurisdiction.  While I, being fallible,
like other men, may have, as I said before, committed many errors, yet
what I have done I stick to, and am proud of. Impeach as much as
you please-convict as much as you please: I maintain the honesty and
justice of my official conduct. As to all these complaints about harsh
treatment of lawyers, and the like of that, if it must all be investigated,
I expect to show that if I had gone off the bench occasionally and inflictedcl personal chastisement upon some of those lawyers, ninety-nine
out of every hundred who might learn all the facts would say I did right.
I deny that any of these charges against me are serious, because they
can all be disproved. I admit that they are qrave charges, because they
affect my private character as a Judge and as a gentleman. They are
not grave in any other sense. In fact, the truth of the whole matter is,
there is no issue for this Court to try. The contract of these gentlemen
did not extend so far as, the making of an issue, and they have made
none. Their only contract was for ruining my character by a proceeding
of this kind. It did not extend to this stage of the game.
SENATOR WRIGHT. I would like to know, Mr. President, if I can state
my position on this question? I want to know whether the discussion
of these matters is to be left entirely to Judge Jackson and the honorable managers, and whether there is no means of stopping it when it goes
wrong?
Mr. HARDIN.  I would say in answer to the honorable gentleman, that
from an examination of the precedents in the British Parfament and
the United States Senate, there seems to be no authority for Senators
participating in the discussion of legal questions raised during the trial,
except it be in secret session.
JUDGE JACKSON.  The gentleman is always in error in referring to the
English Parliament and Congress. Under the constitution of this State,
Judges are not subordinate to the legislative power, as they are in England, and our constitution is essentially different from the constitution
of the Federal government. It might do, perhaps, in Massachusetts, to
hunt up parliamentary precedents, for there they call the Legislature
the General (Court of last resort. But in this State it is entirely different.
64 
HIGH COURT OF IMPEACHMENT.
MIr. PRESIDENT. I will read, in answer to the Senator from Warren,
the rule upon this point, adopted by the Senate for its government during the progress of the triaL It is the 13th, and reads thus:
All motions made by the parties, or their counsel, shall be addressed to the
President of the Senate, and if he shall require it, shall be committed to writing,
and read at the Secretary's table; and all decisions shall be had by ayes and
noes, and without debate, which shall be entered on the records.
The vote was then taken upon the motion of Senator Parsons to overrule the motion of the respondent, and stood as follows:
AYES-Messrs. Brown, Byrne, Churchill, Coleman, Frazier, Goodlett, Gullett,
Halliburton, Harris, Hedgpeth, Horner, McFarlanid, McFerran, McIlvaine, Morris, Newland, O'Neil, Parsons, Peyton, Rains, Richardson, Scott, Thompson,
Vernon, Wilson, Wood, and Wright-27.
NOEFs —None.
Absent-Messrs. Fox, Hyer, Johnson, Jones, Robinson, and Watkins.
So the respondent's motion was overruled.
IMr. HARDIN, on behalf of the managers, movqd the Court to enter
the following order:
Ordered, That the witnesses on behalf of the State and accused be sworn and
charged to leave the chamber, and not to be present whilst any witness shall
be testifyiig, under penalty of attachment and punishment as for contempt.
M'r. PRESIDENT suggested that the object of this motion was, perhaps,
already provided for by the 15th rule adopted for the government of
the Court, which he read as follows:
Before the examination of the witnesses against the accused commences, the
accused shall, by himself or counsel, have the right to require all the witnesses
in attendance, who shall be called upon to testify, to be sworn, and be excluded
from the Court, except the witness who shall be placed on the stand to testify;
and thereupon no witness, who has thus been sworn, shall be present during the
examination of another witness, unless the defendant or his counsel shall consent thereto; and it shall be the duty of the President of the Senate to advise
all1 the witnesses of this rule; and if any witness, in violation of said rule, shall
enter the Court, he shall be deemed to be in contempt of the Court, and shall be
punished as the Court shall adjudge. And in like manner, before the witnesses
for the accused are examined, they shall, upon demand of the managers, be
sworn and excluded as provided above, in the case of the witnesses against the
accused, and shall in like manner be dealt with.
Mr. HARD.nN.  Our motion is not inconsistent with the rule, but in
furtherance of its requirements.
After some discussion by Senators Rains, Wilson, and Gullett, in relation to copies of the Rules and the Journals of the Senate, the motion
made by Mr. Hardin was agreed to. 
Whereupon the following named witnesses upon the part of the State
were called, and the President of the Senate administered to them the
following oath, to wit:
You, and each of you, do solemnly swear that the evidence you shall give in
the present case, wherein the State of Missouri is plaintiff ansl Albert Jackson is
defendant, shall be the truth, the whole truth, and nothing but the truth; so
help you God.
WITNESSES  NAMES.
Jonas Eaker,
WVm. C. Harty,
5
Wm.  Rint,er,
David Manning,
65
Joseph Aliller,
J. A. AValker, 
HIGH COURT OF IMPEACHIMENT.
WITNESSES' NAMES - Continued.
Daniel McCloud,
J. J. Jackson,
Mr. - Whitehead,
M. H. Tyrell,
James B. Odell,
Hamilton Scott,
James Walker,
Thomas A. Moore,
WTitnesses subpenaed, Iut not appearing.
Wm. Grimsley,
John R. Woodside,
John P. Conrand,
James M. Dunn, (not found,)
Richard Wall, (not found,)
M. McCormick, (not found,)
C. A. Davis, (attachment issued,)
David M. Fox, (attachment issued,)
M. H. Moore, (alias subpena issued,)
Philip Pipkin, (attachment issued,)
H. H. Bedford, (attachment issued.)
Those of the foregoing witnesses on the part of the State who appeared, having been sworn as above stated, were charged in accordance
with the rule by the President of the Senate, and the Secretary of the
Senate was proceeding to call the witnesses on the part of the defendant,
when
JUDGE JACKSON objected.  He did not understand the rule as requiring his witnesses to be called, sworn, and charged at this stage of the
trial.
Mr. KXOTT said that the rule requiring the exclusion of witnesses
should be made to operate so as to prevent any imputation of unfairness or collusion; and this could not be done unless all the witnesses
were put under the rule alike. The motion just acted upon was intended to carry out this view.
JUDGE JACKSON thought the gentlemen only intended to exclude
their own witnesses, to which he had no objection. He read the rule
(above cited by the President of the Senate) to show that the witnesses
summoned on his part were not to be excluded, upon the motion of the
managers, until he entered upon his defense, and in further support of
his position alleged that he did not know what witnesses he would introduce, and could not know until the testimony for the State was
closed.  He should most probably have to use one or both of the man agers for the purposes of evidence, and they with the others would
come under the rule if it was enforced now.  Hie should certainly in sist upon using Mi'. Knott, at least, as a witness.  He wished this mat ter to be regulated by the rule adopted for the purpose of regulating it,
and thought there could be no difficulty about it.
Mr. KNOTT replied, urging that the object of the rul would be de feated by the course which the respondent seemed desirous of taking,
and that the question raised by him had already been determined by
the Court, in ageeeing to the motion of Mr. Hardin.  If there was any
propriety in excluding the State's witnesses, the same propriety existed
for excluding the witnesses on the other side. What if the respondent
did not know the exact number of witnesses he would wish to use, and
who they were? If any of those he had subpenaed were not needed,
their being excluded from the Senate Chamber would not necessitate
their examination, and could do neither them nor the respondent any
harm. It was not proposed by the managers to cut off the respondent
from his right to summon new witnesses, if he deemed it expedient,
during the trial.  Hence there was no force in this objection.
66
S. G. Kitchen,
lioses Harvey,
Lemuel Kittrell,
Daniel Eppes,
Wm. Vandiver,
B. Thornburg,
Wm. 0. Hull
James Hale,
W. F. Cry ts,
A. J. Ruff,
Daniel L. Jennings,
N. W. Sites, -
Wm. G. Phelan,
Washington Carlisle,
Chris. C. Green,
James Cooper. 
HIGH COURT OF IMPEACHMENT.
After some further and desultory discussion on this point, during
which the propriety of reporting and printing the evidence was adverted
to and debated at some length, and which discussion was participated
in by Senators Richardson, (in the chair,) Rains, Thompson, Parsons,.
Halliburton and Scott, and by Messrs. Hardin and Knott, and the
respondent, the question was decided by a vote of the Senate, as follows:
For calling respondent's witnesses, and putting them under the rule nozwMessrs. Brown, Byrne, Churchill, Coleman, Frazier, Goodlett, Gullett, Halliburton, Harris, Hedgpeth, Horner, McFarland, McFerran, McIlvaine, Mo.ris,
O'Neil, Parsons, Peyton, Rains, Richardson, Scott, Thompson,  Vernon, and
Wood-24.
Opposed-Messrs. Newland, Wilson, and Wright-3.
Absent-Messrs. Fox, Hyer, Johnson, Jones, Robinson, and Watkins.
The following named witnesses were then called, sworn, and charged
in accordance with the rule:
WITNESSES' NAMES.
George W. Creath,
Adams Dalton,
Horace Bailey,
Chas. Henderson,
Henry Miller,
John D. Smith,
Sanders Walker,
David G. Hicks,
John Beasley,
John M3arsh,
Henry Noble,
Dr. Russell,
C. M. Dowdy,
William B. Cone,
James Hodges,
John C. Walker,
Lewis Chandler,
David Cryts,
Frank Lawson,
A. Lowe,
J. Proc. Knott,*
Moses Harvey, (sworn for State)
Dabney S. Cooper,
John S. Gallaway,
Jacob 3Miller,
Pinkney Powers,
Alex. Ward,
A. J. Ruff, (sworn for State,)
Lemuel Kittrell, (sworn for State,)
Wm. Vandiver, (sworn for State,),
James Dennis,
Richard Spencer,
James A. Atkins,
Thos. Walker,
William Culbertson,
H. A. Shook,
W. H. Horner,
James Dowdy,
Samuel H. Flournoy.
J. W. Souther,
Alex. Sloan,
Chas. H. Hardin.*
Witnesses subpenaed, but not appearing.
Reuben P. Owens,
Jacob Catron,
Barnabas Bledsoe,
Orson Bartlett,
M-iles Ponder,
W. W. Norman,
Witnesses subpenaed, but not found.
John Dillon,          John Lax,
Reuben Harper,         Wm. Morrow,
James J. Gardiner, (alias subpena issued,)
On motion of SE\ATOR HALLIBUPRTON\, the Court adjourned till 3 o'clock
in the afternoon.
; Managers on the part of the House of Representatives.
67
Joseph Davis,
Robert Miller,
Wm. Henley,
Joseph White,
Frank Lee,
Jacob Blount,
J. ]Ff. Board,
John Yarberi
W. B. Howell,
Stephen Rice.
Albert Reaves,
Thos. A. Lovelace. 
HIGH COURT OF IMPEACHMENT.
EVENING SESSION.
TUESDAY, June 7, 1859.
The Court met at 3 o'clock.
The following witnesses on the part of the defendant appeared, and
were sworn and charged according to the rule: Isaac Hlobbs, Joseph
Davis, W. B. Howell.
\,Ir. PRESIDENT.  Are there any further preliminary matters to be
attended to before proceeding with the trial? If not, the managers
on the part of the House will proceed with their case.
MR. KNOTT'S OPENING SPEECH.
Mr. KNOTT rose and said:
Mr. PRESIDENT: It devolves upon me to present to this honorable Court
the grounds upon which the Ilouse of Representatives predicated, and
confidently expects to sustain the impeachment, for the determination
of which we are at present convened; and I trust I will not be suspected
of a trifling affectation when I express the very great degree of embarrassment under which I approach the discharge of that duty. I do not
appear at this bar merely as the advocate of an individual demanding,
at the hands of those who have it in charge to administer the laws, redress for a violation of his personal rights; nor am I here to plead the
cause of the State against an ordinary offender, charged with some petty
infraction of the criminal code; but at the command of the Grand Inquest of the State, made by the constitution the guardians of the purity
and integrity of the government, to present in behalf of all the people
of the State, and make good their accusation against one occupying a
distinguished official position, for a long catalogue of high crimes and
misdemeanors; to establish against one whom the people have honored
with one of the most sacred and important trusts pertaining to the govornment, the deep guilt of disregarding that distinguished trust; of
trampling under his feet the laws he was bound by his solemn oath to
maintain and administer in their purity, integrity and justice; and of
outraging the rights he was sworn to protect, in a series of abuses of official authority unparalleled, at least in the annals of this country.
I appear, too, before the highest court known to our constitution,-a
tribunal of statesmen, before which that magistracy which tries all
others else is brought to account for the fidelity of its deportment in the
distinguished position to which public confidence has elevated it; while
I am fully sensible that consequences of the most portentous character
must necessarily attend the result of the investigation upon which we
are about to enter.  As the illustrious Burke remarked  inhis celebrated
speech upon the bill for the taxation of the American colonies, I know
our people "augur misgovernment from afar, and snuff the approach of
tyranny in every tainted breeze." I know that public attention is directed from every portion of the State to the proceedings in which we
are now engaged, the result of which I am confident will either demonstrate the efficacy of the barriers erected by the constitution against the
abuse of that authority necessarily delegated by the people to those in
power, or it will tend to destroy public confidence in the securities pro vided by the State against the encroachments of arbitrary oppression.
A proper appreciation of all these circumstances excites within me a
painful distrust of my ability to present this case in a manner commen surate with its importance,-that will justify the generous partiality of
68 
MR. KNOTT S OPENING ARGUMENT.
those at whose instance I am here on this occasion, and comport with
the dignified character of the tribunal at whose bar I now have the
honor to stand.
But, sir, the duty devolving upon me is not less disagreeable than
onerous. The human mind possesses the same instinctive repugnance,
and perhaps even more readily revolts at the contemplation of moral
degradation, than at a spectacle of physical decay, particularly when
associated with endowments of intellect and advantages of mental cul ture from which better results might reasonably have been anticipated.
When we behold a mind endowed by nature with every faculty that can
constitute it a source of benefaction to our kind, and sufficiently culti vated to render it a sparkling gem in the coronet of society, rendered
subservient to the most ignoble passions of the human heart, a slave to
all the dark. malignant emotions of man's baser nature, we can but pity
its unfortunate possessor, while we deprecate the monstrous perversion
of his splendid gifts. But when we see a man, thus endowed, elevated
in consequence of that very endowment, by a confiding country, to a
distinguished participation in its government, rendering the power inci dental to his position subsidiary to the gratification of the worst impulses
of his soul, betraying the generous confidence of those who were instru mental in his elevation, and bringing disgrace, obloquy, and evil of every
description upon a country of which he might have been the benefactor,
the ornament, and pride, every other emotion gives place to unmitigated
abhorrence and disgust. In the one instance, sir, we may be said to ex perience something like the same feelings we would in gazing upon the
ruins of some splendid temple, where the hyena's horrid laugh echoes
through the "long-drawn aisle and fretted vault,;'"-where owls flit at
noon day, the loathsome toad distils its venom beneath each slimy stone,
and the deadly night-shade waves its noxious foliage around the altar
where once arose grateful incense to the living God; in the other, we
feel as if in the presence of the grim demon of destruction himself, who,
folding his dusky pinions above the broken arches and mouldering columns, broods in fiendish ecstacy over the desolation his baleful breath
has scattered around him.
But, sir, onerous and disagreeable as this duty is, it is likewise inevitable. The same dire necessity that impels the application of the surgeon's knife to rid the body of the mangled, gangrened, putrescent
member, to preserve the balance from putrefaction and death, induced
the institution of this impeachment, and requires its present prosecution.  No ends of private vengeance are to be attained by it,-I thank
God this tribunal is far above the approach of causes instituted for any
such purposes,-but it is designed to vindicate the purity and integrity
of the institutions of our State; to admonish those with whom the people have committed that degree of power necessary for the good government of sooiety, that they cannot abuse that power with inpunity;
that when they pervert their authority to the gratification of their own
passions, they shall be held to strict and speedy retribution. And, sir,
onerous and disagreeable as is the duty devolving upon me, in conneetion with this case, and illy capacitated as I know I am for its proper
discharge, as a representative of the people, I would not shrink from it
if I could. For, sir, I hold that as this government is instituted for the
benefit of the governed, to protect them in their lives, liberties, reputation, property, and the pursuit of happiness, it becomes the especial
duty of the representative selected from the general mass, under the
most solemn pledges of fidelity to their interests, to see that no foul
pollutions are permitted to contaminate this great fountain-head of
popular happiness.
It is an axiom incorporated in the constitution of our State that all
69 
HIGH COURT OF IMPEACHMENT.
political power is vested in the people,-that they are sovereign, the
ultimate and sole repository of all political authority,-and that they
delegate to those in the various departments of government only so
much of that power as is necessary for the protection of all and the
promotion of the general welfare; and hence, sir, the representative of
the people, the immediate acting agent of the whole, is under every
obligation that gratitude, patriotism, honor, morality, and religion impose, to watch the exercise of that delegated power with the most
jealous vigilance, to see that it is not perverted to personal aggrandizement, or arbitrary oppression.
influenced, sir, no doubt, by such considerations as these, the wise
framers of our State constitution, as well as the patriotic sages who
framed the constitution of the United States, vested the sole power of
impeachment in the House of Representatives, composed of members
coming directly from among the popular masses, understanding their
wills, participating in their feelings and interests, and immediately
responsible to them for the manner in which they discharge the important trust committed to their hands.  But, sir, whatever may have
been the reasons that influenced the investment of the House of Representatives with the power of impeachment, I hold its exercise to be
one of the most sacred and important duties devolving upon them, and
one from which I trust in Almighty God they may never be disposed to
shrink, whenever  circumstances  may  exist demanding its exercise.
And such, I make no doubt, were the views and sentiments of the
gentlemen of the House of Representatives, when, with a unanimity
unparalleled in the legislative annals of this country, they impeached
the respondent at this bar of that extraordinary catalogue of high
crimes and misdemeanors to which I now propose to invite the attention of this honorable Court,-which it is expected we shall be able to
establish by the most incontrovertible evidence, and which, moreover,
if so established. it is as confidently expected this Court will stamp indeliblv with the seal of unqualified condemnation.  But, sir, if the
proofs we shall offer shall be insufficient to fix upon the respondent the
deep guilt of which he stands charged in these articles, none will acquiesce more cordially, or rejoice more sincerely at his honorable acquittal,
than those who have it in charge to conduct this prosecution.
In order to determine the exact points in controversy,-that you may
be enabled to properly appreciate and apply the testimony as it will be
adduced,-it is necessary that I should enter upon a specific examination
of the several matters of complaint alleged against the respondent. I
will premise, however, that, as it has pleased the respondent to urge
something in the nature of a demurrer to the articles exhibited against
him, I am compelled to offer a more elaborate commentary upon the
several charges preferred against him than I had intended.
Permit me to read to the Court the first article:
ARTICLE I.  That, unmindful of the sacred obligation by which he stood
bound to discharge the solemn duties of his office faithfully, impartially, and
consistently with the dignity and importance of the trust reposed in llmn, as
Judge of the Fifteenth Judicial Circuit, in the State of Missouri, the said Albert
Jackson, at a Circuit Court begun and held at the town of Bloomfield, within
and for the county of Stoddard, in the State of Missouri, on the third  Monday
in May, A. D. 1858, (whereat the said Albert Jackson, by virtue of his  office
aforesaid, did preside as Judge,) did willfully and imaliciously conduct himself
in a manner highly oppressive and unjust to one Jonas Eaker, viz:
First. The said Albert Jackson, desiring to harrass and oppress the saidJonas.
Eaker, did, at the Circuit Court aforesaid, whereat lihe, the said Albert Jackson,
presided as Judge, as aforesaid, cause an attachment to issue against him, the
said Eaker, as for a criminal contempt, because said Eaker did not make return
to a writ of nmaidasius, which writ had never been delivered to said Eaker, but
70 
MR. KNOTT S OPENING ARGUMENT.
of which a copy had been delivered to said Eaker; by virtue of which attachmlent the said Jonas Eaker was arrested and held in custody for several hours,
anal released finally by said Albert Jackson on condition that he, the said Jonas
Eaker, should make return to the copy that had been delivered to him, said
Jackson well knowing that said writ had never been legally served upon him,
the said Eaker, and that he was not in contempt for not answering thereto.
Second. In refusing to permit counsel for said Eaker to speak in his behalf,
wvhen they proposed to show to the court that said writ of mandamus had never
been properly delivered to, or served upon him.
Third. In peremptorily, and in an oppressive, angry, and insulting manner,
ordering the counsel of said Eaker, to wit, Solomion G. Kitchen and William G.
Phelan, to shut th-eir nou[ths and sit down, when they, in behalf of their said
client, attempted to suggest an insufficiency in the service of said writ of mandamus.
FourtM. In depriving said Jonas Eaker of the benefit of counsel, and of the
privilege of speaking through such counsel in his own defense, as he had a lawfil right to.
A celebrated philosopher of antiquity being asked what was the best
government, is said to have replied, "that in which the whole power of
the State is pledged to avenge an injury done to its humblest citizen."
B3ut, whilst this is no doubt true, it is not the object of the present prosecution to make reparation to Air. Eaker for any injury he mnay have
sustained.  It is intended to wipe out the odium brought upon the law
and the judiciary of the country, by the illegality of his imprisonment
and the malice with which it was inflicted, and to prevent the recurrence of such abuses of power, in future, by the prompt condemnation
of the party guilty in this instance
It is not denied that courts having the power to issue writs of mandamus are also clothed with power to enforce return to such writs, by
attachment; but we do contend that before a court can lawfully cause
an attachment to issue to compel a return to such a writ, it must appear that the writ of mandamus has been legally served upon the person required to make return thereto, and that there is reason to believe
such person is in contempt. The law compels no man to answer to process that has not been legally served upon him. This principle is so
clearly understood, so universally acknowledged, that it requires neither
argument nor illustration.
The statute founded upon a recognition of this palpable principle of
common sense has prescribed a definite mode in which process must be
served, and until executed in the manner prescribed by law, the person
upon whom it should have been served is neither compelled to appear,
nor answerable for contempt in not appearing. Were this not true, you
would have no security for the enjoyment of a single right you possess.
The same authority that would justify a court in compelliig a party to
appear and answer where there had been an insufficient service of process, would authorize it to assume a jurisdiction where there had been
no service at all. So, sir, your rights might be adjudicated upon in your
absence,-your property might be swept away, your liberty declared
forfeited, your person seized and hurried away to the dungeon, ultimately to dangle at the arm of the gibbet, without your ever knowing a
syllable of the cause, or being permitted to speak a single word in your
own defense. It needs no argument to demonstrate that a disregard of
this principle would at once destroy all permanency and certainty in the
operation of our laws, and render them entirely dependent upon the
whim and caprice of those who are to administer them,-thus establishing a tyranny of the most dangerous and detestable character. If,
therefore, it shall appear that the writ of mandamus issued by the respondent in this instance had not been legally served upon Mr. Eaker,that the respondent was apprised of this want of a proper service, and,
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HIGH COURT OF IMPEACHMENT.
notwithstanding his knowledge of that fact, caused a writ of attachment
to issue against him, by virtue of which he was taken in custody and
restrained of his liberty,-the conclusion is inevitable, he is guilty of a
double wrong-a willful and dangerous perversion of the law, and an
outrage upon the personal liberty of a citizen, perpetrated under color
of his official authority, and for which he is properly held to answer at
this bar.
I grant, sir, that the courts are very properly endowed with power to
imprison for contempt, under certain circumstances; but if they are not
responsible for abuses of that power,-if they are permitted to tear the
citizen from the bosom of his family, and the demands of his business,
upon an alleged contempt, and shut him up like a malefactor in the
jail, whether guilty or not, and still be amenable to no tribunal for
such high-handed oppression,-we are under a despotism far more despicable than the autocracy of Russia, for we are subject to all the arbitrary
injustice and cruelty that characterizes that government, while we
blindly cherish the illusion that we are in the full enjoyment of a bloodpurchased liberty.  Establish the doctrine, sir, that a Judge of the Circuit Court may imprison the citizen without the authority of some definite rule of law, but merely to gratify his own malignant passions, and
who is safe? at what moment may the stornim not break forth, and who
may not be the victim? Hiave you a guaranty that you may not betorn
from your business and your family, and thrust into jail, to glut the
hate of some petty despot, mantled by the "judicial ermine?"  But,
thank God! so far from this horrible doctrine being true, our laws place
the liberty of the citizen upon the same footing with his life, his property, and his reputation, and gives the Judge no more power over the one
than he has over the other. Tie is not authorized to trample upon
either. Sir, this is no new doctrine that I enunciate. Hundreds of years
ago, our English ancestry, properly estimating the propriety of erecting
as many bulwarks as possible against infringements of their rights by
those in power, assembled upon the "grassy plain of Runnemede,"
and, at the point of the sword, forced from their unwilling sovereign a
guaranty that no subject should ever be deprived of his liberty, except by the
judgment of hispeers and the law of the land! And, sir, the framers of our
constitution, impressed with the inestimable importance of the right of
personal liberty, ingrafted the provision of Magna Charta I have just
quoted into our own bill of rights,-incorporated it in our constitution,in order that all who might be endowed with power to violate it should
take a solemn oath to maintain it inviolate. Nor is it remarkable that
the T)reservation of this right should have been made a special subject of
constitutional enactment; for it is upon the preservation of this that
the enjoyment of all other rights depends.  What to you, sir, were all
the wealth of Peru or Golconda, if, immured in the damp walls of the
prison, you were unable to accumulate around you any of the appliances
of ease, elegance, and luxury, that go to make up the sim of refined
enjoyment?  What enjoyment could life itself afford you, if chained
down and made to breathe the noisome vapors of a dungeon, where
the glad smile of friendship could never beam around you, nor the
sweet voice of affection break the gloomy monotony of your horrible
solitude?
But, sir, I go even farther than this: I maintain that the vigilance of
the people should be more constantly awake to infringements of their
personal liberty than of any other right they enjoy, and that violations
of this right should of all offenses be most promptly and energetically
condemned; for while it is upon the preservation of this that the enjoyment of all other rights depends, it is of all others most asily violated
with impunity by unprincipled and arbitrary officials. To bereave a
72 
MR. KNOTT'S OPENING ARGUMENT.
man of life, or strip him of his property, without warrant of law, but
under color of official authority, would be an outrage so glaring, so palpable, that public justice would instantly arouse and vindicate itself, by
visiting upon the offender immediate and exemplary vengeance; but a
man may be hurried, under pretext of lawful authority, to the damp,
loathsome vaults of the prison, whence no wailing cry for help can ever
reach the ear of pitying justice, and his wrongs are either unknown or
soon forgotten by all b]yond the confines of his living tomb, except
those to glut whose malice he is buried there! But more, sir: the judiciary is intended to protect our rights, not trample them under foot; and
the Judge upon the bench, so far from possessing a license to trifle with
our liberties, is under the obligations of a solemn oath to preserve and
secure them from violation. He has no more right to deprive you of
your liberty without proper warrant of law, than he has to confiscate
your estate, apply the incendiary's torch to your dwelling, or plant the
assassin's dagger in your bosom.
Yet, sir, palpable as these considerations are, we have here one of the pillars
of the law,-a man professedly Zearned in all departments of human wisdom,asserting without a blush that he can, without authority of law, deprive a citizen
of his most inestimable right, and still be held amenable to no authority,-still
he guilty of no crime against the laws of his country!
In his answer the respondent says specifications one, two, three, and
four, of article first, charging as they do a willful and malicious outrage
upon the constitutional rights of a citizen of Missouri, are insufficient
in law!
But, sir, let it not be urged in extenuation of the crime charged in
this article, that the imprisonment of Eaker may have been but of a
few hours' duration. It is immaterial, so far as this action is concerned,
whether it was accompanied with that duration and other circumstances
that in a private prosecution for false imprisonment would go in aggravation of damages, or whether it was not. Every curtailment of the
liberty of the citizen is an imprisonment, whether it be in the dungeons
of a Bastile, or the custody of a ministerial officer of a court of justice,whether it be of but an hour's duration, or poison the happiness of a
whole existence; and it is of the illegality of this imprisonment of
Eaker, and its malicious infliction, of which complaint is here made.
But granting this imprisonment of Mr. Eaker was of but an hour's duration: who gave the respondent control over that single hour of his
existence? who will undertake to determine with what consequences
upon the destinies of Eaker, and those dependent upon him, that
single hour may have been pregnant?  "Where," remarks a profound
thinker of the present age, "can a place be found to hang the scales on
which to weigh the results of a single human action?" The destinies of
a whole life may turn upon the fulcrum of a moment;  and yet a learned
Judge will tell this Court that he can rob you of your freedom without
authority of law,-that he can usurp control over the destinie of your
life, anld of the lives of all dependent upon you,-and still be guilty of
no wrong!  Sir, has it come to this-can an American  Judge, in this
land, where freedom was purchased with the blood of so many martyred heroes, deliberately tell a Court of the dignity and learning of the
one I now have the honor to address, that, without any authority save
the caprices of his own licentious passions, he can violate the dearest
right of a free-born man, and be guilty of no offense?
But, sir, I forbear to comment further upon this article, for I am confident, with whatever indifference the respondent may affect to treat it,
every member of this honorable Court is satisfied that the offense alleged in it is, by no means, the most trivial that could be charged against
him; and, if established by the evidence, it will be sufficient to dismiss
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HIGH COURT OF IMPEACHMENT.
him in disgrace from a position he has shown himself intellectually and
morally disqualified to occupy longer.
In the becond article the respondent is charged with the most unjust,
improper, and disgraceful conduct as Judge,-a willful partiality between
certain parties litigant before him, clearly manifested in his officiously
advising and counseling one of the parties not to compromise an action
in which he was defendant, pending before the respondent, assuring him
he would be successful, and giving him the reasons why.
It is not because, if the charge alleged in this article is true, the
respondent has violated an express statute, that I rely upon its sufficiency to sustain an impeachment; but because it exhibits a degree of
partiality entirely at variance with every duty of a Judge, disgraceful
to the judicial character, and utterly inconsistent with the proper administration of justice.
The Judge, sir, from the very nature of his office, is bound to yield a
blind obedience to the law as he finds it, regardless of the tender sentiments of friendship, or the malignant promptings of animosity and
hate. He is to know no friend, no foe; but with the integrity of an Aristides, and the disinterested fidelity of a Brutus, to deal out even and
exact justice to all under the law, as he finds it, without endeavoring to
swerve it a single hair's breadth from its legitimate course.  From such
a course alone can community derive from the judiciary that protection which its establishment was designed to give, and by such a course
alone can the judicial character secure that veneration so essential to
a full and proper discharge of all its functions.
I have frequently thought, sir, that human nature can afford no more
splendid spectacle,-that the image of deity never shines with more unclouded lustre,-than in the honest, upright Judge, who, sacrificing every
personal feeling and sentiment of his own bosom, holds the scales of
justice with a steady, impartial hand, uninfluenced by any consideration
save the purest love of truth and right.
With an equal scale
He weighs the offenses betwixt man and mat;
He is not soothed with adulation,
Nor moved with tears, to wrest the course of justioe
Into an unjust current.
Upon the other hand, it seems to me that if there is a living proof of
the utter depravity of our race,-if there is a fitting portraiture of the
arch enemy of man,-it must be he who, elevated by a confiding country
to one of the most sacred, important, and distinguished trusts that can
be conferred upon the citizen, basely betrays the confidence reposed in
him,-renders the power incidental to his position subservient to the
gratification of his own passions, the promotion of his own interests,
and the accommodation of those he may see proper to favor, irrespective of law, justice, or any of the duties of his place.
I will not now trespass upon the forbearance or the Court,
by attempting a full exposition of the utter inconsistency of a
course of conduct, such as is charged in this article, with the duties
of this respondent as Judge, nor cite any of the numerous authorities
within my reach by which such conduct is unqualifiedly denounced,
not only as being unbecoming his character as Judge and inconsistent
with his official duties, but as a misdemeanor in office for which he is
liable to indictment. The respondent himself has not had the hardihood to contend that such conduct would not be highly improper in
him as Judge; but sets up in his answer the very singular palliation that
the advice complained of was given in his private capacity, and not as
Judg,e.
74 
MR. KNOTT S OPENING ARGUMENT.
Friar Tuck, I believe, was in the habit of making a distinction be tween himself as the Holy Clerk of (,opmanhurst, and as the Merry Out law of Harthillwalk; but the delicate distinction was always beyond my
comprehension.  I never could understand how he could divest himself
of all his unholiness with his suit of Lincoln green, and take on the pu rity of the priesthood with his grey friar's frock; and I am as much at a
loss to understand how the respondent can make a difference between
counsel given as Judge and that imparted as a private individual, when
the effect upon the rights of the parties is precisely the same in both in stances.  Indeed, sir, it appeais to me, if a Judge must give way to his
feelings,-if he cannot resist the inclination to act partially,-it would be
more reprehensible in him to cloak that partiality in public, and only
give nis ifavorite the advantage of it privately, than to make an open ex hibition of it upon the bench; for in the latter instance. the opposite
party having an opportunity of seeing the influences operating against
him, might remove his cause to some court where he could obtain jus tice; while in the other, he goes like the unsuspecting lamb to the slaugh ter, not dreaming that his cause has not only been already judged, but
that the very Judge to whom he looked with the most implicit trust for
right and justice has been enlisted as counsel for his adversary. Let
this Court imagine an unsuspecting citizen, confiding in the justness of
his cause and the integrity of the laws of his country, approaching a tribunal of justice in full confidence that ample justice will be done him,
while that same court is secretly closeted with his competitor advising
him how to conduct his cause, what advantages to avail himself of, and
what he may rely upon as the result; and tell me if the human heart can
conceive a more odious, disgusting, sickening picture of corruption and
iniquity!
But, sir, the instance of corrupt partiality complained of in the second
article is by no means the only one alleged against the respondent in
this impeachment. Turn to the eighth article, and you will find a similar
accusation, or perhaps rather broader, since he is there charged with'advising MIr. Odell publicly as well as privately how to conduct his cause,
and assuring him his client could not be convicted. Again, if you will
turn to the thirteenth article, you will find him accused of advising Mr.
Ringer to bring suit against Mr. Kitchen, assuring him that Kitchen was
personally liable to him, and there could be no doubt of his recovering
a judgment,-endeavoring thereby, as the language of the article expresses it, "to incite a vexatious and expensive law suit in the court of
which he himself was Judge, for the purpose of harrassing said
Kitchen."
Turn again to the sixteenth article, and you behold him charged with
hearing and determining a motion to quash an indictment pending against
one David G. Hicks, who was acting as Circuit Attorney, without appointing some other attorney to represent the State in that behalf; intending thereby to screen Mr. Hicks from a prosecution for, serious
offense against the laws of the country, for which he had been regularly
indicted. You will perceive, also, in the seventeenth article, he is
charged with permitting his partiality to exhibit itself in a variety of
ways; but I will not comment upon it now, as it will recur upon an
examination of the articles in the order in which they are presented.
I will not trouble the Court with a further discussion of the character
of the crimes charged in the allegations to which I have just directed
your attention. There will be occasion for that hereafter, for I entertain
no doubt the evidence will establish them indubitably,-that all the circumnstances will show that the respondent did all of which he stands
charged neiaa anieno, totally regardless of the duties of his office,  the
rights of the pairties, or the law of the land.
75 
HIGH COURT OF IMPEACHMENT.
But. sir, improper, disreputable, and unbecoming as it is to a Judge to
exhibit the slightest degree of partiality in the exercise of his official
functions,-disastrous as that partiality may be to the rights and interests
of parties litigant before him,-it really assumes the character of a virtue,
when compared to its opposite extreme-willful, wanton, heartless, arbitrary oppression. The one may result from a redundancy of good feeling, that, under some circumstances, would reflect credit upon our nature
-an overweaning desire to confer a benefit upon a friend; the other is
always the offspring of the most malignant passions of the human soulthe revenge of an ignoble spirit, pinioned down by the grossness of its
own innate corruption in the lowest depths of depravity, and made, like
Milton's portraiture of Sin, the perpetual prey of its own fiendish whelps
-envy, hate, and malice.
It is upon this reckless spirit of wanton oppression that the Hiouse of
Representatives has based a charge against the respondent in almost
every article they have exhibited against him; and surely, if he is guilty
of them all, he must have taxed his invention for a variety of ways in
which to manifest that despotic inclination. I will read one of them to
the Court:
ARTICLE III.  That, actuated by a spirit of arbitrary despotism and wanton injustice, totally repugnant to the sacred duties pertaining to his office, and highly
dangerous to the rights of the citizens of the State, the said Albert Jackson, Judge
of the Fifteenth Judicial Circuit, at a Circuit Court begun and held within and
for the county of Waynre, in the State of Missouri, at the town of Greenville, in said
county, on the last Monday in September, A. D. 1858, whereat said Albert Jackson, by virtue of his office aforesaid, presided as Judge, was guilty of willful and
malicious oppression, misconduct, and abuse of authority in his official capacity:
First. D)uring the Circuit Court aforesaid, at the time and place aforesaid, David M. Fox, one of counsel for plaintiff, in the cause of    Limbarger vs.
Power, then and there pending before said court, presented a petition to said
Albert Jackson, then and there presiding as Judge of said court aforesaid, to
change the venue of said cause to some other court, because of the prejudice of
the Judge, and informed him, the said Albert Jackson, that both parties and
their counsel had agreed that said cause might be sent to either the county of
Madison or the county of Iron, as either of said counties would be convenient
and easy of access; but the said Albert Jackson, Judge as aforesaid, utterly unmindful of the rights of the parties and counsel in said cause, and totally disregarding the provisions of the statute in such cases made and provided, and willfully and maliciously intending to harrass and oppress the parties aforesaid, and
their counsel, awarded a change of venue in said cause to Mississippi county
well knowing said county to be remote, difficult of access, and inconvenient to
all the parties, counsel, and witnesses in said cause.
Second. When counsel engaged in said cause, to-wit, David M. Fox and Philip
Pipkin, attempted then and there to prevail upon him, the said Albert Jackson,
to change the venue to some other county more convenient to all parties, and
informed him that by sending said cause to Mississippi county he would deprive
them of the privilege of attending to their clients' cause, as theyuad been employed to do, he, the said Jackson, replied to each of them in an oppressive, insolent, and insulting manner, highly shameful, and derogatory to the dignity of
the important position he occupied as Judge, as aforesaid.
The law allowing changes of venue in causes was enacted out of the tenderest regard to the rights of parties, and to secure the administration
of the strictest justice.
If from any cause the people of a county where any case is pending,
or the Judge before whom it is to be tried, is liable to be biased by favor,
affection, or prejudice, so that the strictest impartiality and the fairest
trial cannot be confidently relied upon, it is provided that such case
may be removed to some county where such impediments to the proper administration of justice do not exist; and it is true that, in grant
76 
MR. KNOTT S OPENING ARGUMENT.
mg changes of venue, the court is clothed with a certain discretion as
to what county the case may be sent to; but that discretion must be
guided by reason, and is, as far as practicable, circumscribed by positive
statutory enactment, in order to secure to the parties, counsel, and witnesses the cheapest, speediest, and most convenient trial; and it follows
as an unavoidable conclusion, if a Judge send a case upon a change of
venue to a court, knowing that it is remote and cannot be attended
by the parties, counsel, or witnesses without great expense, trouble, and
inconvenience, while there are other courts to which it might be sent
far more suitable and convenient to all concerned, such Judge, in imposing such a hardship, is guilty of oppression in office,-an offense
at common law, and by statute indictable and impeachable. It is necessary for you to understand that, in the case complained of in this
article, the cause was pending in Wayne county, in the northern part of
which both Limbarger and Power resided; that immediately contiguous on the north is situated the county of Iron in the Ninth Judicial
Circuit, the county seat of which is about twenty or twenty-five miles
from the residence of the parties, the county of Madison in the Tenth
Judicial Circuit, with Fredericktown, the county seat, about eighteen
or twenty miles from the parties, and the county of Bollinger in the
Tenth Judicial Circuit, the county seat of which is some twenty or
thirty miles from the residence of the parties; that, when the application was made for a change of venue, these facts were suggested to the
court, and further, that the parties had both agreed, through their
counsel, that the cause might be sent to either Iron or Bollinger, as
either of them would suit the convenience of all concerned; and that
the respondent, in full view of all these things, sent the case through
Bollinger, Cape Girardeau, and Scott,-all in the Tenth Judicial Circuit,
-to Mfississippi county, over one hundred miles distant: more than five
times as far from the parties as either of the counties suggested to him
as being suitable, proper, and agreed upon by the parties. And the circumstances will show, moreover, that this outrage upon the rights of the
parties was perpetrated with the malicious design of harrassing and
oppressing them and their counsel. But the respondent, in his answer
to this article, announces the astounding doctrine, that the court has the
right to send a case on change of venue to any county, however remote and
inconvenient it may be to the parties.
Now, sir, if he is really sincere in this position, he will no doubt say
he can with perfect impunity send a case from the county of Dunklin
to the extreme northwestern county in the State; nay, that he can
send every cause in which an application for a change of venue may be
presented to him, to the most remote and difficult county that can be
found in the State, and still be guilty of no impropriety. If he make
this admission, he is also forced to contend that he has a perfect right
to inflict upon parties all of the outrageous wrongs that must result
from such a course of conduct,-he must claim that he can force them
to absent themselves from their business and their families fo' weeks;
that he can impose upon them the difficulties, the dangers, inconvenience, expense, and fatigue of hundreds of miles travel; that he can deprive them of the evidence of their witnesses, and compel them to engage strange counsel, who neither know anything of the witnesses or the
facts at issue; in short, that he, by an arbitrary and oppressive ruling,
may compel them to try their causes before himself, and still be guiltless
of any wrong. Yet, who is here so blind as not to see the extreme absurdity of such a position? But, sir, the Legislature of our State, in
its wisdom foreseeing that there might possibly be a Judge who would
entertain the dangerous and despotic doctrine advanced by the respondent here, or who, to gratify some feeling of vengeance against a per
7T 
HIGH COURT OF IMPEACHMENT.
sonal enemy, might be tempted to subject him to as much trouble and
expense as possible, to guard against such a disgraceful abuse of authority, has provided that, in granting changes of venue, the courts
shall consult the convenience of parties; and it is somewhat astonishing
to me that a gentleman so well experienced as this respondent is said
to be, in granting changes of venue, should have overlooked this provision of the statute.
In articles four and five similar outrages are charged; but I will not
trouble the Court to read them at this time. I am instructed, however,
to say to the Court, that, in all these instances, the evidence will show
that the respondent, so far from consulting the convenience of the parties, the promotion of their rights, or the furtherance of justice, seemed
to exert his ingenuity in ascertaining the particular counties that would
be most inconvenient, particularly to the counsel presenting the petition for a change of venue, so as to drive him entirely out of the case;
and furthermore, that he spared no pains to insult, annoy, and perplex
them, when they ventured to speak in defense of their own rights, and
the right of their clients.
The House of Representatives, sir, complains in almost every article
of the rude, insulting, tyrannical, and oppressive demeanor of this respondent, towards lawyers practicing in his courts; and the respondent
has not only by numerous inuendos in his answer, but whenever he has
had occasion to make any remarks to this court, attempted to excite a
prejudice against those gentlemen who compose his bar, as well as the
profession generally, and to create the impression that, because a man is
a practicing lawyer, he is justly subject to all the galling oppression and
villainous abuse the Judge under whom he practices may see proper
to heap upon him. I am not here, however, to vindicate the profession
of which I am an humble member from such insidious and unnecessary attacks-such a thing is not necessary before this honorable court;
nor is it my province to pronounce a panegyric upon its characterit needs none at my hands: its panegyric is the history of human
civilization. The common law and the constitution of our country,
those wonderful achievements of human wisdom, are the monument
that will secure to it the admiration and gratitude of mankind, when
the respondent and I shall be known only as common dust.
1 claim for the profession of the law no other iimmunities than are
due to the private citizen. They are entitled to no more, but they are
entitled to as much. I claim for them as citizens, under the protection
of the law, the same respect to which every other citizen is entitled in
appearing before the tribunals of his country, and no more; but I do
contend that a Judge should not be permitted to shelter himself behind
his official authority to insult even the meanest and most obscure. It
is unbecoming the character of a gentleman, under any circumstances,
wantonly to offer an insult to another, particularly when that other is
unable to defend himself; how, then, does it comport with-the position
of a Circuit Judge, shielded by the panoply of his office, to convert the
bench into a theatre for the enactment of such disgraceful scenes as are
set forth in the sixth article?  Permit me to read it:
ARTICLE VI.  That at a Circuit Court begun and held at the town of Poplar
Bluff, within and for the county of Butler, on the first Mondey in May, A. D.
1858, whereat said Albert Jackson presided as Judge, the said Albert Jackson
was willfully guilty of gross and malicious oppression, misconduct.and abuse of
official authority, not only unbecoming his high position as Judge, but disgraceful to his character as a man, to wit: 
Fir-st. During the sitting of the Circuit Court aforesaid, whereat said Jackson
presided as Judge as aforesaid, one William G. Phelan, a regularly licensed lawyer, practicing in said court, arose to address a jury that had been empanneled
78 
MR. KNOTT S OPENING ARGUMENT.
and sworn to try an issue joined in a cause then and there pending, to wit, the
cause of Gibson vs. Dunn, in which said Phelan had been employed and was
acting as counsel; whereupon said Albert Jackson, maliciously intending to
oppress said Phelan, and to injure his reputation as a citizen, and diminish his
success as a lawyer, in an angry, oppressive, insolent, and insulting manner,,
ordered him to sit down, and then and there publicly, and in an insulting and
contemptuous manner, accused said Phelan of having been guilty of a disgraceful and criminal act, to wit, tampering with the grand jury, and that said
Phelan was in criminal contempt of court, together with other shameful and insulting expressions.
Second. When said Phelan immediately offered to defend himself against
said disgraceful accusations and insulting expressions, said Albert Jackson,
under color of his authority as Judge, in an angry, insolent, and oppressive
manner, peremptorily ordered said Phelan to shut his mouth  and sit down, (or
words of that import,) and refused to permit said PhelaR to say anything by
way of denial, excuse, explanation, palliation, or in. any  maniner to vindicatehimself against the disgraceful, criminal charge thus publicly alleged against
him by said Judge in open court.
But, sir, shocking and atrocious as the conduct charged in this article
must be to every man of correct principles, it dwindles into utter insignificance when compared to that attributed to the respondent in the?
one succeeding it, where he is charged with deliberately accusing Mr.
Fox of one of the most odious and detestable felonies known to the
calendar.  I will not venture now to give my opinion upon such conduct, or of a man that would be guilty of it; nor is it necessary for me
to remind this Court that, had either of these gentlemen dared to retort
upon the respondent in such terms as the character of his assaults
upon them justified, entrenched as he was behind his official authority,
he would have added injury to insult by fining or sending them tojail. But there mustbe some redress for this, some remedy for an evil so
gross and palpable,-some protection against a despotism as dangerous as
it ismean, petty, and despicable. Where is it? It is here, in the tribunal
that protects the purity and integrity of the government,-it is in the High
Court of Impeachment that such violence to the rights of the private
citizen, by the elevated official, must be tried and punished. The question is submitted to you, whether your judiciary may be made the
theatre for the enactment of scenes that would disgrace the lowest
resort of vice and blackguardism? whether the bench is to be
degraded to the meanest purposes of personal vituperation? whether
the citizen who approaches the courts of his country must tamely
crouch beneath a burden of abuse and. insult that would gall the most
servile slave or vilest dog, and the tyrant who heaps these grievous
wrongs upon him go unscathed?  And this question you must answer
to your consciences, your country, and your God.
I now ask leave to call the attention of the Court to the ninth
article:
ARTICLE IX. That, utterly unmindful of the provisions of the constitution of
the State securing to its citizens'"the privilege of the writ of habeas corpus,"
which the experience of ages has demonstrated to be one of the chief bulwarks
of the liberties of the people, the said Albert Jackson, Judge as aforesaid, willfully and maliciously refused to issue a writ of habeas corpus for the purpose of
having the body of a man named           Atterbury, who was confined in jail in
the county of Dunklin, on a criminal charge, brought before him, as a Judge of
the Circuit Court of said county, to be admitted to bail, or otherwise dealt with
according to law, notwithstanding a petition, in every particular sufficient in
law for that purpose, was presented to him, the said Jackson, as Judge as aforesaid, at the county of Stoddard,. on the - day of, A. D. 1858; he, the
said Jackson, well knowing it to be his duty to issue said writ, but refusing to
do so because the name of David G. Hicks was necessarily mentioned in the
petition.
79 
HIGH COURT OF IMPEACHMENT.
In his answer to this article the respondent becomes exceedingly
facetious.  I will read the splendid corruscation of wit it occasions:
Said Albert Jackson was not unmindful of the provision of the constitution of
the State securing to its citizens the privilege of the writ of habeas corpus. Said
Jackson does not know the experience of ages has demonstrated that the writ of
habeas corpus is one of the chief bulwarks of the liberty of the people; joins
issue, and takes the negative of the proposition!
It is said, sir, that Nero fiddled whilst Rome was in flames, and
we can account for the brutal indifference of this cruel tyrant to the
suffering, ruin, and misery transpiring around him, on the hypothesis
that he was not himself immediately involved in it; but the spectacle of a dignified official, when his own character is made  the cynosure of all eyes, making a serious accusation exhibited against him,
involving his reputation as a man and as an officer, the subject of a
pitiful, puny jest, is a phenomenon in moral science I can only account for upon the theory of mental aberration, or total insensibility to
every sentiment of self-regard. It may not, perhaps, be entirely proper
for me at this time to remark upon the character and tone of the respondent's answer; butit does seem to me from this response, and others
of a kindred nature to be found in his answer, he has either intended
it as a matter of contempt to the House of Representatives, who preferred these articles, or to bring this honorable Court into ridicule, by
making it the arena for an exhibition of low buffoonery.
He "does not know that the experience of ages has demonstrated that
the privilege of the writ of habeas corpus is one of the chief bulwarks
of the liberty of the people!" Perhaps, for his especial edification, I had
better cite some authorities that possibly he has overlooked. If he
will take the trouble to read Hallam's Historv of the English  Constitution, he will be informed that, in one of the oldest British Year-Books,
the writ of habeas corpus is denominated "one of the chief bulwarks of
the English constitution." The gentleman will also find a distinguished
essayist upon civil society characterizing the writ of habeas corpus as
"the keystone of liberty, the writ that forces the secrets of all prisons to
be disclosed, and the cause of every commitment to be exhibited." Or
if he will even recur to the days when he read Blackstone's Commentaries, (for I presume he has at least read that author,) he will remember that distinguished writer names it the "bulwark of the English
constitution."
JUDGE JACKSON.  Will you please give me the volume and page?
Mr. KNorTT. Fourth book, page 359, I think. And, sir, any English
authority upon the subject will teach you that the privilege of the writ
of habeas corpus was coeval with the common law, and that it was ever
esteemed-long before the enactment of the statute of Charles II.,
known as the "habeas corpus act"-one of the most sacred rights of the
citizen. And now that it occurs to me, there is another itema of intelligence that I would impart to the gentleman, for his special delectation.
This celebrated statute of Charles II., so much esteemed by every true
friend of human liberty, enacted one hundred and eighty years ago,
resulted from the imprisonment of a man as humble as this man Atterbury, confined in jail for contempt of a court over which the king
himself presided in person! The unjust refusal of a corrupt, venal
court, to issue a writ of habeas corpus for the relief of that obscure man,
aroused public indignation to such a degree that Parliament found it
necessary to embody the salutary provisions of the common law upon
this subject, which had been recognized for ages, into a plain statute,
that none might, under a pretense of ignorance of them, refuse to grant
the relief guarantied by those provisions of law.
80 
MR. KNOTT'S OPENING SPEECH.
But, sir, if the respondent is as ignorant upon this subject as he pre   tends, and desires to be enlightened as to the esteem in which the citi  zens of our own country have held this inestimable writ, I will inform
him that in 1774, in the passage of the celebrated "Quebec bill," the
British Parliament refused to extend to that province the privilege of
the writ of haease corpus; and that our Revolutionary Fathers, in their
enumeration of grievances for which, in the Declaration of Independ  ence, they declared they no longer owed any allegiance to the British
crown, alleged that the citizens of a sister province were deprived of
the privilege of this writ. They not only considered it grounds for a
revolution, to be accomplished by a sanguiniary and protracted war,
but when they came to erect a new government of their own upon the
ruins of their colonial allegiance, fearing that men endowed with power
might be tempted to deprive the citizen of this cherished right, they
provided in the constitution of the United States that the privilege of
the writ of hIabeas corpus should never be suspended, except in cases of
rebellion or invasion, when the public safety might require it. And the
framers of our State constitution, desiring to throw additional safe guards around this privilege of the citizen, incorporated in that consti tution the very same provision. When the respondent took upon him self his official obligation, he made a solemn oath to support and main tain both these constitutions in all their purity and force; and yet, when
he is charged with a willful violation of one of the plainest and most
vital principles they contain, he seeks to insult this dignified tribunal
by making a jest of the accusation. I hope, sir, I have vindicated the
rhetoric of this article to the satisfaction of the respondent.
But, sir, inestimable as the privilege of the writ of Iabeas corpus is, indispensable as it is to the complete security of the liberty of the citi zen,-and notwithstanding every Judge of the Circuit Court in the State
is bound by his oath of office to issue such a writ whenever a proper
petition is presented to him therefor, it by no means follows that he has
power to turn every prisoner brought before him, on such process, loose
upon the community, irrespective of his character, and regardless of
his guilt or the legality of his imprisonment.
The Judge is compelled by his oath under the constitution to issue
writs of habeas corpus, upon the presentation of sufficient facts; and his
action in relation to the prisoner, when brought before him, is clearly
and definitely defined by law. Were it not so, there would be no certainty or efficacy in our criminal code whatever.  The corrupt Judge,
guided alone by his own inclinations, and those inclinations influenced
by the basest considerations, could with perfect impunity inflict the
deadliest injuries upon the well-being of society, by arbitrarily turning
loose in its midst the worst of felons, reeking with the most revolting
and dangerous crimes. To guard against such a contingency,-such a
dangerous assumption of power by the courts,-it is provided in the
habecs corpus act of this State that, 
When the imprisonment is for a criminal or supposed criminal matter, the
court or magistrate before whom the prisoner shall be brought under the provisions of this act shall not discharge him for any informality, insufficiency, or irregularity of the commitment; but if from the examination taken and certified
by the committing magistrate, or other evidence, it appear that there is sufficient
legal cause for commitment, he shall proceed to take bail, if the offense be bailable, and good bail be offered; if not, he shall commit the prisoner to jail.
Again, sir, it is provided in the very next section that,
When the offense is clearly and specifically set forth in the warrant of commitmnent, no evidence other than the examination taken and certified thereunto,
shall be received for or against the prisoner, unless such examination has not
6
81 
HIGH COURT OF IMPEACHMENT.
been taken and certified according to law, in which case the committing magistrate may be examined, if desired by the prisoner, as to the evidence on which
the commitment was found; and thereupon the court or magistrate shall proceed
to bail, discharge, or remand the prisoner, as the circumstances of the case may
require; and in the absence of all such evidence the prisoner shall not be discharged,
but may be bailed or remanded, according to the circumstances of the case.
Now, sir, under these provisions of the statute, the duties of a Judge
or court, before whom a prisoner may be brought on a writ of habear
coms, are made so plain as to utterly preclude the possibility of mistake.
He is first to examine the warrant of commitment: if that is sufficiently specific to notify him clearly of the charge resting against the
accused, he is precluded from the right to examine any testimony for
or against the prisoner, except that which is taken and certified with
the warrant. If, however, the committing magistrate has failed to reduce the evidence to writing and certify it according to law, the Judge
before whom the prisoner is brought may, upon the application of the
prisoner, examine the committing magistrate as to the evidence upon which
he found the commitment; but he can only do this on the application
of the prisoner; and if the prisoner do not desire it, the Judge can
do no more than examine the warrant, and, if he is charged with a
bailable offense, bail him, or if the offense be not bailable, or sufficient
bail be not offered, commit him to jail. The statute is plain; there is
no discretion.
But, sir, our committing magistrates, as a general thing, are men engaged in the various industrial avocations of life, and being unaccustomed to drafting legal documents, are not to be presumed to be at all
times capable of doing so with perfect accuracy. Must every villain
charged with crime go unpunished because the magistrate before whom
he is examined fails to draft his commitment with perfect formality?
or even fails to certify his examination according to law? By no means.
The statute I have just read clearly forbids it; yet, notwithstanding
these positive enactments of law, it is charged in the tenth article, and
I expect it to be clearly proven that, on the 9th day of January, 1859,
this respondent, willfully disregarding these plain provisions of the
statute, and reckless of the good order and welfare of community,
discharged from the custody of the Sheriff of Stoddard county a man
who had been arrested and found guilty of grand larceny, simply upon
the pretense of an informality in the warrant of commitment by which
he was held in custody by the officer; and more, that even this pretext
was groundless; that the Sheriff or Deputy Sheriff, Mr. John J. Jackson, I believe it was, held the prisoner by virtue of a regular warrant
of commitment, sufficient in every particular, and clearly and specifi cally setting forth the crime of which he was charged, a copy of which
was not only exhibited to the respondent by Mr. Trell, when he
presented the petition for a writ of habeas corpus, but also by Mr.
Jackson, in his return to the writ. You will be shown, by the very
order discharging Maine from custody, that the respondent did not
predicate that discharge upon a want of reasonable grounds to believe
the prisoner guilty, but simply upon a pretended omission or mistake
of the magistrate before whom he was examined. But this is not all,
sir. It will be shown that upon the very same day the respondent, in
open violation of law, turned loose upon that community another felon,
who had been examined and committed in default of bail. I feel as sured, sir, that the circumstances attending this last case will preclude
every other conclusion than that the respondent acted willfully and
maliciously corruptly.
82 
MR. KNOTT'S OPENING SPEECH.
A man had been arrested upon a charge of passing counterfeit money,
taken before a competent magistrate, and examined. Upon the conclusion of the examination, the magistrate was of opinion there were
sufficient grounds to believe him guilty, and held him to bail in the
sum of three hundred dollars; but desiring to afford him every opportunity to obtain bail, he placed him in the keeping of Mr. Cryts, Constable of his township, to be secured until the next day at ten o'clock,
at which hour he determined to deliver him, with a proper warrant, into
the custody of the Sheriff, in case he should fail to obtain security.
Before the hour of ten o'clock arrived, however, the respondent issued
a writ of habeas corpus and discharged the prisoner, with a full knowlede of all the facts, simply because Mr. Cryts had not in his possession
a warrant of commitment and the examinations.  But what makes
this case still more glaring, Mr. Cryts procured the examinations and
commitment, brought them and presented them to respondent before
he had discharged the prisoner, and he refused to look at them; but,
bent upon liberating him, regardless of his guilt, turned the scoundrel
loose, to curse the country with the commission of additional crimes.
I cannot consistently with what yet remains for me to do in presenting
this case to you, dilate upon the outrageous character of the conduct
charged in this article, or the consequences of permitting it to go unchecked. Nor will I now advert to the numerous authorities I have
before me, touching the law in relation to it; but I will ask this court to
contrast the unbecoming leniency to criminals, the recklessness of crime
exhibited in these cases, with the disgusting zeal for the enforcement of
the criminal law manifested in his conduct before the grand jury of
Stoddard county, as shown in the next article:
ARTICLE XI.  That at a Circuit Court begun and held at the town of Bloomfield, within and for the county of Stoddard, on the third Monday of November,.
A. D. 1858, whereat the said Albert Jackson presided as Judge, the said Albert
Jackson, disregarding the duties of his office, did descend from the dignity of a
Judge, and stoop to the level of a common informer, by calling the attention of
the grand jury, empanneled and sworn for that county, at said court, during
his public charge to them, to the fact that he, the said Jackson, had understood
that a certain citizen of said county had gone to Jefferson City and pretended to
transact some business for said county, in relation to obtaining some certified
lists of swamp lands; that he had obtained a warrant upon the County Treasury for one hundred and seventy or sevenity-five dollars, and that if the facts
were as he understood them, they constituted the crime of obtaining money
under false pretenses, which was punishable by imprisonment in the penitentiary, and that it was the duty of said grand jury to make  diligent inquiry of
said case; that the man to whom he alluded was a lawyer, and that they, the
grand jury, could find out who it was by asking the County Treasurer who had
obtained a warrant for a hundred seventy or seventy-five dollars; whereby
everybody there, and those present, understood him, the said Judge, to mean
Solomon G. Kitchen, a citizen of said county.
And by appearing before the said grand jury, in their room where they had
retired to consider of presentments, and then and there again tellingsthem it
was their duty to make diligent inquiry of said facts; and that if they found
the facts to be as he had understood them, they should find an indictment
against the person who had obtained the warrant, and that Solomon G. Kitchen
was the man who had procured the said warrant; thereby rendering his high
functions as a Judge subservient to a low personal malice, and seeking, under
color of his official duties, to wreak his own private vengeance, by affixing to
the reputation of a personal enemy the imperishable disgrace of a public prosecution for a felonious offense.
Sir, throughout this entire catalogue of disgusting and disgraceful
malversations in office, none strikes me as more detestable or dangerous than this. Certainly no spectacle more humiliating, and at the same
time more alarming, can be presented to the patriotic citizen, than that
.83 
HIGH COURT OF IMPEACHMENT.
of a Circuit Judge using his office-that office which of all others should
exhibit the most spotless purity-that office to which all should look
for safety and protection in the rights guarantied by law-as an engine
of private vengeance, as a means of glutting his fiendish hate, his
demoniac malice against a personal enemy. How easily, too, he accomplishes his diabolical design, and that without incurring the universal
detestation his infamous conduct so justly merits. On the contrary,
whilst he is cowardly assassinating the character of an unoffending citizen, he is applauded as a zealous advocate for the supremacy of the law
he ruthlessly tramples beneath his unhallowed feet. In his public charge
to the grand jury, in the presence of hundreds, he signalizes his victim
by name; or, by some damning inuendo more destructive to his reputation, tells them he has been informed that certain facts exist, in relation
to the conduct of the object of his vengeance, for which he should be
indicted. He dilates upon the information until he is certain the public ear has caught the poison of his breath, and the unhappy man goes
forth the object of a thousand furtive glances of suspicion, shunned
and avoided by his former friends and neighbors as though he were infected with the deadly plague. Not content with having set in motion
the simoon of slander, whose baleful fires will blast the fair fame and
consume the happiness of his victim, he follows the grand jury to the
privacy of their retirement. There, with the influence his position
gives him, by perverting the law and magnifying the facts, he succeeds
in fixing upon the devoted object of his hate the imperishable odium of
a public prosecution for a felony,-a disgrace that will poison his whole
existence, and even survive the premature grave that opens its hospitable
portals to hide his sorrows; and when he beholds his weeping wife and
little ones, left to wander through a friendless life with the leper-spot
of suspicion upon them, with a chuckle of fiendish exultation he folds
the "pure ermine of justice" about him and laughs, "ha! ha! revenge
is sweet."  My God! is there no help for this?  May a Judge thus demean himself and there be no remedy? You must answer that question to your constituency.
Sir, when Mr. Kitchen was employed by the County Court of Stoddard county to visit this city on business for that county,-when he
had spent his time and money in its service, and had accepted pay for
his time and reimbursement of the money he had paid out for the
county, —Argus, with his hundred eyes, could not have been more
watchful than this respondent. He could permit his zeal for the majesty
of the criminal code not only to induce him to condescend to the level
of a common informer, but to violate the law both in the manner and
substance of his charge to the grand jury. But how different was his
conduct at the November term, 1857, of the Butler Circuit Court, when
he refused to prefer charges against the Clerk and suspend him from
office and appoint a temporary Clerk in his place, notwithstanding he
knew the Clerk was in a state of total drunkenness, anciin the entire
neglect of every duty of his office. Sir, if you will read the twenty first section of the "act regulating Clerks," you will find that any Clerk,
willfully neglecting any duty of his office, shall be deemed guilty of a
misdemeanor in office. Read the very next section, and you will see
that is the duty of the Judge or court, when he has reason to believe of
his own knowledge that a Clerk has been guilty of any misdemeanor in
office, to give information to the Attorney General of the charges
against the Clerk, suspend him from office, and appoint a temporary
Clerk in his place. Now, it is charged in the twelfth article, and we
expect to establish it beyond a doubt, that the respondent knew this
Clerk was guilty of a gross misdemeanor in office; that he was completely intoxicated, and not present at all to keep the minutes of the
84 
MR. KNOTTOS OPENING SPEECH.
court, take charge of papers, swear juries, or to perform any of the
duties of his office; that the respondent was earnestly requested to
exercise the prerogative the law gives him, to suspend the Clerk and
appoint a temporary one, but that notwithstanding all this he refused
-to do so; but on the second day of the term he dismissed the grand
jurors against their wills while they were inquiring into important mat  ters, continued all the causes pending, adjourned court, and took pos  session of the papers pertaining to causes triable and answerable at that
term; and when lawyers requested permission to see them, he insult ingly refused them, alleging that he was afraid they would be purloined;
and that the excuse he gave for this neglect to perform a positive duty
enjoined upon him by the statute was, that Mr. Blount, the Clerk, was
a good fellow, and it would be a pity to turn him out of office! Sir, in
this instance an officer willfully neglects his duty, involving the rights
and interests of an entire community,-indeed, there is no calculating
the real extent of the injury resulting from his misdemeanor,-and the
very Judge whose sworn duty it is to see that such derelictions of duty
are brought before the proper legal authorities, screens him from justly
merited punishment because he is a good fellow!-not because he is inno cent of any wrong, but because he is a good fellow! I suppose, sir, the
respondent, from this example of his philanthropy, will justify this
Court in concluding that, if one of his friends were arraigned of a brutal assassination, he would endeavor to protect him from the vengeance
of the law on account of his being a good fellow. A short time since we
see him publicly and privately engaged in hounding the grand jury
on to a peaceable citizen, because he had made an honorable contract
with his County Court-I presume he did not consider Mr. Kitchen a
good fellow! But, sir, -shall this respondent be held guiltless of any
offense in thus disregarding the rights and interests of an entire community? I had thought I would not advert to any authorities at this
time; but there is one that answers this important question so much
better than I can, that I ask leave to read it.  I will read from  Hawkin's Pleas of the Crown.
SENATOR PARSONS. Will you give the volume and page, that I may
save the citation in my notes?
Mr. KNOTT.  Yes, sir.  Book first, chapter sixty-seven.  The copy I
have in my hand is divided by chapters, but not paged so as to be of
easy reference by that means.
In the grant of every office whatsoever, there is this condition implied by common reason, that the grantee ought to exercise it diligently and faithfully; for
since every office is instituted, not for the sake of the officer, but for the good of
some other, nothing can be more just than that he who either neglects or refuses
to answer the end for which his office was ordained should give way to others
who are both able and willing to take care of it.  And  therefore  it is Stain
that an officer is liable to a forfeiture of his office, not only for doing a thing
directly contrary to the design of it, but also for neglecting to attend to his duty
at all usual, proper, and convenient times and places, whereby any damage shall
accrue to those by or for whom he was made an officer.
Sir, the distinguished writer of this could have made no more perfect
commentary upon the article under consideration had it been directly
referred to him, and I shall attempt no other.
Miy present strength, and a proper regard for the patience of the
Court, will not allow me to attempt an elaborate examination of the remaining articles, even were any remark necessary to convince this
learned body of the highly dangerous and reprehensible conduct attributed in them to the respondent. I take it for granted that no
amount of argument could possibly heighten the condemnation with
85 
HIGH COURT OF IMPEACHMENT.
which this Senate would regard a Judge of the Circuit Court who, to
prevent his decisions from being reviewed, or to oppress a party and
deprive him of his rights, would resort to such means to prevent him
from getting his cause fairly before the Supreme Court as the respondent
is charged with in the fifteenth and sixteenth articles. I need not say
that, if the Judges of the Circuit Courts are to be permitted thus to
act and be held guiltless,-if they are to be licensed to falsify their
records so as to present a case with entirely different features from the
one actually tried,-the provision of the constitution providing for the
establishment of a Supreme Court and the statute regulating its powers and duties are entirely nugatory; nay, sir, it is worse than useless
to maintain such a tribunal at all,-learned, honest, and capable, as I
am proud to say those distinguished gentlemen ar4 who now doso much
honor to its bench,-if parties are to be prevented from bringing their
causes fairly before it, by a corrupt and officious Judge.
But, sir, there are some offenses charged in the seventeenth article
that deserve at least a passing notice; and I feel constrained to ask the
indulgence of the Court while I briefly direct attention to them. In
the first place, he is charged with having visited the grand jury, at
the August term, 1858, of the Stoddard Circuit Court, during their re tirement, whilst they were considering of presentments, and then and
there instructing them that playing cards for whisky, oysters., etc.,
was not an indictable offense under the statute to prohibit gaming.
Mr. PARsoNs.  I would ask whether you insist that the offense charged
in the first paragraph consists in entering the grand jury room, or in
giving the charge after entering?
Mr. KNOTT.  I had intended, after enumerating the acts charged in
the article, to point out in what the illegality of each consists; but I
thank you for calling my attention particularly to the point in passing,
for I might have omitted something connected with it. I hold, in the
first place, that the respondent was guilty of an offense in visiting the
grand jury, in their retirement, for the purpose of instructing them as
to their duties. He had no more right to enter the grand jury room to
instruct them as to the law, or their duties, than he has to go into a
petit jury room and give them instructions privately as to the law
governing the particular case they may have under consideration. I
claim, also, that he misstated the law; but that is immaterial in my
estimation, or at least would be if it were not true, as will be shown,
that the grand jury was engaged in the investigation of a charge against
the respondent for that very identical offense, when lie instructed them
that playing cards for whisky, oysters, and so forth, did not constitute
an indictable offense.
JUDGE JACKSON. Is it not also charged that I said playing for money?
Mr. KNOTT.  No, sir.  You may have given such an instruction, but
it is not so charged.  In the second place, I maintain t-at he was guilty
of an offense in telling the grand jury that they should not find an in  dictment against him for anything of which he might be guilty as
Judge. This instruction, in direct contravention of law, and revolting
to common sense, given not in the face of a scrutinizing public, but in
the secrecy of the grand jury room and under the circumstances of
personal interest, is of itself a sufficient indication of corruption to
condemn him in the estimation of every citizen of correct notions of
official duty. But the grand jury, in spite of his charge to the contrary,
find a bill against the respondent and others for gambling. One of the
parties, claiming a separate trial, is immediately arraigned; and upon
this trial the respondent, by no means dispirited by his discomfiture in
the grand jury room, takes up the cudgels for the defendant, com  ments upon the evidence and the nature of the offense, argues the
86 
MR. KNOTT S OPENING SPEECH.
case and illustrates his position by a variety of illustrations, and finally
puts the climax to his outrageous misconduct by invading the province
of the jury, taking possession of their consciences, and telling them
they should not find a general verdict,-that they might find the facts,
but he would take upon himself to say whether the defendant was
guilty or not under the law; that finally, when the accommodating
Circuit Attorney, who was indicted as "particeps criminis," proposed to
enter a nolle prosequi, he opposes no objection whatever.  Now, sir, I
aver that this conduct is not only disgraceful to the judicial character,
but in direct violation of two plain provisions of the statutes. It has
always been the custom of the English courts, and is customary for the
courts of several of the States of this Union, to sum up and comment
upon the evidence adduced before the jury; but this practice, so
fraught with wrong, or, to say the least, so dangerous to the rights of
parties, has been wisely and justly condemned in our statute, which
expressly forbids a Judge to do so, and further provides that the court
shall not instruct the jury orally, but in writing, in order that he shall
have no power to bias the law without being liable to exposure. Yet,
sir, this respondent, in open defiance of provisions of law plain as it is
possible for human language to render them, permits his partiality and
solicitude for the cause of his friend to precipitate him into abuses of
official authority not merely calculated to bring disgrace and the con
tempt of all good men upon himself, but to bring the judiciary of the
country into disrespect, obloquy, and derision.
I will not enlarge upon the charges contained in the eighteenth arti cle. If the bare recital of them does not send a thrill of horror through
every bosom here, I despair of any power I possess as being capable
under the most auspicious circumstances, of conveying any adequate
impression of their atrocity. Yet, sir, to all these charges, exhibiting
an array of crime as various as diabolical ingenuity can invent, and as
dark as human depravity can conceive, this respondent avers in answer
that they are not sufficient in law to warrant an impeachment  He
seeks to soften the horrid aspect of this dark catalogue of crime by
giving to it the milder appellations of errors, omissions, mistakes, and
irregularities; and concludes with the annunciation that, "by the constitution of Missouri, a Judge can only be impeached for misdemeanors
in office, and those misdemeanors must first be declared, and the penalty
affixed by an act of the Legislature." Here, sir, is the great point of
the respondent. It has been the burden of his defense since he made
his first appearance at this bar, that the House of Representatives could
only impeach him for misdemeanors in office, and that such misdemeanors should first be declared by statute; in other words, that a Judge
can only be impeached for a statutable offense, and that offense must
relate to his official conduct. It is said to be the prerogative of great
men to differ; and certainly, sir, there is a remarkable difference
between this respondent and Mr. Story, Mr. Sergeant, and Mr. Rawle,
who have all given it as their opinion that, to constitute an impeachable
offense, it need not be a statutable or even an indictable one, but, on
the contrary, that the greater number of offenses for which an officer
may be impeached are such as are not indictable.  These are denominated political offen es, and may consist of any misconduct tending to
bring the offices of the country into obloquy and disrespect, or to
diminish their adaptation to the objects they were designed to accomplish. The involutions of society are so intricate and numerous, and
the variety of forms this species of misconduct may assume is so great,
that it is impossible to define them by statutory enactment, and consequently it has never been attempted by our Legislatures. For these
offenses an officer may be impeached, whilst he cannot be indicted.
8T 
HIGH COURT OF IMPEACHMENT.
For instance, under the constitution of the United States, certain Federal officers may be impeached for ";'bribery, treason, or other high
crimes and misdemeanors." There is no law of the Federal government
under which a man may be indicted for drunkenness or profane swearing, even though he be a Judge upon- the bench; yet a Judge has been
successfully impeached before the Senate of the United States, and
broken of his office, for these very offenses.  I allude to the case of
Judge Pickering, with which every member of this court is doubtless
familiar.
Again, sir, if the doctrine laid down by the respondent is true, that a
Judge can only be impeached for offenses committed in the discharge
of his official duties, he can leave the bench and go upon the street,
and there, without cause or provocation, blow out the brains of an unoffending citizen; he may steal his neighbor's horse, or lay his dwelling
in ruins with the incendiary's brand, and you cannot impeach him,
because he didn't commit the murder, theft, or arson, in the discharge
of his official duties! The process of impeachment in this country is
merely to remove a man from office, and to disqualify him from holding
office,-and it is the only process by which some officers can be removed
from office; and if you can only impeach such as have been guilty of
some official misconduct, you may have your judiciary polluted with
murder, arson, theft, robbery, and every other description of villainy
you can imagine, without the power of correcting the evil! I must
really ask pardon of Court for pretending to combat a position so
ridiculously absurd.
But, sir, grant the respondent the full benefit of his position,-admit
that a Judge can only be impeached for official misconduct,-and I am
prepared to show, not only by the common law authorities which I have
now here before me, but by the statutes of the State, that in every article he is accused of one or more offenses —statutable, indictable offenses
if you please-for which, if established, he should be hurled in disgrace
from the seat he has so foully polluted. Read the sixteenth section of
the sixth article of the act concerning crimes and their punishments:
Every person holding or exercising any office or public trust, who shall be
guilty of willful and malicious oppression, partiality, misconduct, or abuse of
authority in his official capacity or under color of his office, shall on conviction
be punished by imprisonment in a county jail for a term not exceeding one
year, and fine not exceeding one thousand dollars.
So, sir, wherever this respondent is accused of willful and malicious
oppression,-wherever he is accused of partiality,-wherever he is accused of abuse of authority under color of his office,-wherever he is
accused of any official misconduct, he is accused of an indictable,
statutable offense, for which, according to his own showing, he is properly
impeached at this bar.
Sir, the House of Representatives have discharged their duty in relation to this matter. They investigated the charges here submitted to
you, calmly and dispassionately, as honest, earnest men, in full view of
the obligation under which they rested to themselves and their country,
and deliberately determined that this respondent should be put upon
his trial for the offenses I have enumerated. In doing so, they entertained the highest confidence that this distinguished tribunal would
receive this cause in a spirit commensurate with its importance, and investigate it with that dignity, ability, and justice you are known to
possess; and I am satisfied this Court will justify this distinguished
confidence upon the part of the House of Representatives, by doing
full and complete justice both to the State and to the respondent; that,
if the respondent is guilty, whatever may be his position or influence
88 
HIGH COURT OF IMPEACHMENT.
in the social circle, you will strip him of the robes of office he has polluted; if innocent, you will give him the plaudit, "well done, thou good
and faithful servant,"-there is no spot in thee.
The opening speech of Mr. Knott having been concluded, on motion
of SENATOR SCOTT, the Court adjourned.
THIRD DAY.
WEDNESDAY, June 8, 1859.
The Court met at 8 o'clock, and was opened by proclamation.
The managers and respondent attended.
SENATOR WILSON moved a call of the Senate, which was ordered, and
the following namled Senators were noted as being absent without leave:
Messrs. Fox, Hyer, Johnson, Jones, Rains, Robinson, Thompson, and
Watkins.
Several of the absentees appearing directly after the call, on motion of
Senator Wilson, further proceedings under the call were dispensed with.
Mr. PRESIDENT. Are the parties ready to proceed in the examination
of witnesses?
JUDGE JAcKson.  In my list of witnesses are J. Proc. KInott and Chas.
IH. Hardin. As a rule has been adopted requiring the exclusion of all
my witnesses while the State's witnesses are on the stand, and as the
managers themselves urged this rule, I can only ask that it be enforced,
and they be excluded. It is for the Senate to say whether it will enforce
its rule. I cannot be held responsible for a violation of the rule if the
Senate permits it after I call attention to the fact that any of my witnesses are present.
Mr. PRESIDENT. I suppose the rule cannot be held to apply to the
managers sent here by the House of Representatives.
SENATOR SCOTT. I concur with the opinion expressed by the Chair.
Messrs. Knott and Hardin are not here by virtue of any process, by
subpena or otherwise, of this Court. They are here in discharge of a
duty imposed upon them by the House of Representatives, and the Senate has no power to expel them, although it may have adopted a rule on
the subject which may seem to include them. If this Senate had the
power and could be called upon in this way to exclude the managers,
the ends of justice could be most readily defeated, and this crial would
be a perfect farce. Senators might with the same propriety and by the
same means be excluded from all participation in the trial. It is my
opinion that this question ought not to have been raised here, and I
hope it will not be urged. 
SENATOR WILSON. I agree, entirely, Mr. President, with the Senator
from Buchanan, in the views he has just expressed.  The rule adopted
by the Senate for the exclusion of witnesses is of the same nature as the
common ruling of courts of justice on the point, and could have no
greater effect or operation. It certainly was never the practice to exclude attorneys of record from courts by means of a subpena. If the
Senate were now to attempt an exclusion of the managers, it would seem
that this body was in contempt of the coordinate branch of the Legislature. There can be but one opinion on this subject, and I hope it will
be dropped, and the case proceed.
JUDGE JACKSON. It is no affair of mine if the Senate cannot and will
not enforce its own rulings. The gentlemen have laid a trap, and it
89 
HIGH COURT OF IMPEACHMENT.
turns out that they have caught themselves in it. The position may be
embarrassing to them, but it is no fault of mine.
SENATOR PARSONS.  Are Messrs. Knott and Hardin your witnesses,
Judge Jackson?
JUDGE JACKSON.  Yes, sir.  They have been subpenaed for me.  And
they have asked and obtained a rule for the exclusion of all the wit
nesses on both sides from the start. It is the first time I ever heard of
such a course. It would be right, I admit, to separate the witnesses of
the State, while they are giving testimony, and equally right to separate
my witnesses when the time comes for them to testify. That is the way
the thing is done in the courts, and it's the way the Senate provided by
rule at the start. But the managers have altered it so as to exclude all
the witnesses all the time, and if their own rule works hard with them,
they have only themselves to blame. I merely ask for the operation of
their own rule. If the Senate does not enforce it, I shall simply think
it a hard case, and say, as I said before, that it would be better to go
back to the rule at first adopted by the Senate.
SENATOR GOODLETT.  For the purpose of saving time, Mr. President, I
offer this resolution:
Resolved, That the managers be excepted from the rule requiring the exclusion of witnesses.
I do not hold that a resolution of this kind is necessary to except the
managers, because I believe they are already expressly excepted by law.
But there is no telling to what length this and similar discussions may
be spun out if some decisive action is not taken.
Senators McFerran, McFarland and others, said that the resolution
was the unanimous sense of the Senate, and it was unnecessary to vote
upon it; whereupon it was withdrawn.
Mir. PRESIDENT. There being nothing before the Court, I presume we
are ready to proceed with the examination of witnesses.
Mr. KNOTT.  We are ready to proceed
TESTIMONY OF M. H. TYRELL.
M. H. TYRELL called on the part of the State, and examined by Mr.
Knott:
Question. Mr. Tyrell, where do you reside?
Answer. In Bloomfield, Stoddard county, MissourL
Q. What is your profession?
A. I am a lawyer.
Q. Are you acquainted with Judge Jackson, and have you practiced
in his courts?
A. I am acquainted with Judge Jackson, and have practiced in his
courts.
Q. Were you present at a Circuit Court held by Judge Jackson in
Bloomfield, commencing on the third Monday in May, 1858?
A. I was.
Q. Were you present in that court during the proceedings in a case of
mandamus against Jonas Eaker? Did you witness the proceedings when
the case was called?
A. I am not certain that I was present when the writ of mandamus
issued, but I was present when Mr. Eaker was brought in by attachment,
and I understood the attachment to have issued in consequence of his
failure to make a return to the mandamus.
Q. You will please state to the Court what you may know in relation
to the acts and conduct of Judge Jackson upon that occasion?
90 
HIGH COURT OF IMPEACHMENT.
JUDGE JACKSON.  I object.  When any evidence of the acts or doings
of a court of record are sought to be used, no oral testimony is admissible.
Mr. KNOTT. Well, sir, produce your authorities. We hold that there
are thousands of matters which occur in a court of record, which are
not matters of record, and which can be proved by oral testimony.
JUDGE JACKSON.  Are you through?  If so, I will proceed to make
my concluding argument on the objection.
Mr. KNOTT. My understanding of the rules governing the argument
of objections to testimony is this: The party making an objection
states his reasons and cites the authorities and law upon which he relies
in asking that his objection be sustained. The other party then answers; and the objecting party is entitled to the conclusion without a
right to introduce any new matter. Now, in the case in hand, if the
respondent has any objection to the testimony sought to be elicited by
the question propounded to the witness, let him state it distinctly and
specifically, together with the authorities which he conceives will sup
port his position. We will reply as we think proper, and he can conclude. Such is the rule and the operation of the rule in every court
I have ever known anything about, and such I presume is the rule
here.
JUDGE JACKSON.'  I don't admit the right of the gentleman  to prescribe the manner in which I shall make my argument. I am going to
suit myself about that. I say that you can't offer oral testimony of the
acts and doings of a court of record. Mr. Knott says I must not make
this objection without the authorities. But authority for such a position
as that is hardly needed. But if the Senate wants to have authorities,
they are abundant.
Mr. KNOTT.  If Judge Jackson will give way a moment, I propose to
take the sense of the Senate in regard to this matter of opening and
closing arguments.  It would be as well to settle the matter at once,
and prevent delay and dispute hereafter.
JUDGE JACKSON. I was proceeding to do just what Mr. Knott says he
wants. I will rely upon the case of Bompart vs. Boyer, 8 vol. Supreme
Court Reports; page 234. Also a case in 12 Missouri Reports, page 598.
I have stated my objection to the question.
Mr. KNOTT.  In order to prevent any future difficulty or misunderstanding, I offer for the action of the Senate an order which I will
read:
Ordered, That whenever the managers or the respondent shall make any objection to the introduction of any testimony, the admissibility of evidence, or to
any other proceeding whatever, during the trial, the party so objecting shall, in
his opening, state distinctly the grounds of such objection, together with his
authorities.  The opposite party shall then be heard in reply, an*  the party
making the objection shall be entitled to conclude; but in his conclusion he
shall not be permitted to introduce any new matter.
After some little explanation, the foregoing order was made and entered on the record by the following vote:
AYEs-Messrs. Brown, Byrne, Churchill, Coleman, Frazier, Goodlett, Halliburton, Harris, Hedgpeth, Horner, McFarland, McFerran, McIlvaine, Morris,
Newland, O'Neil, Peyton,  Rains, Richardson,  Scott, Wilson, Wood, and
Wrigh —23.
NOES-Messrs. Gullett, Parsons, and Vernon-3.
Absent-Messrs.  Fox, Hyer, Johnson,  Jones, Robinson, Thompson,  and
Watkins.
91 
HIGH COURT OF IMPEACHMENT.
Mr. KNOTT.  That we may proceed in this matter regularly, I have
reduced to writing the question to which Judge Jackson objects, as
follows:
Question. State what occurred in court during the pendency of the case of
mandamus to Jonas Eaker; all the facts and circumstances you observed touching the behavior of the Judge and others concerned in the case.
To this question, (continued Mr. Knott,) we ask that the respondent
state specifically his objections, and the grounds of it, with his authorities, under the rule just adopted by the Court.
JUDGE JACKSON.  Well, I object to this question because it asks for
oral testimony concerning my acts and doings [as a court. Of such
things the only admissible evidence is the record. If they want anything of the kind, they must bring the record. I refer to the statutes.
By reference to the twenty-third section of the "act to establish courts
of record, and prescribe their powers and duties," it will be seen that a
Circuit Court is a court of record, and in the twenty-fourth section a very
full record of all the proceedings and rulings of such a court is provided
for. Now let us see what the Supreme Court has said in regard to evidence of doings of a court of record. I have referred to the case of
Bompart vs. Boyer, in 8 Mo. Rep., page 234.  I will read the opinion of
Judge Tompkins in that case:
Pelagie Boyer sued Louis Bompart in the Court of Common Pleas of St. Louis
county, where judgment being given for her, Bompart appealed to this court.
Much evidence was given on each side, and two instructions asked by the appellant were refused. No exception was taken to the refusal of the court to give
these instructions.
The court, after the evidence was given in, gave several instructions, none of
which were excepted to.  After the jury had brought in their verdict, the defendant moved the court for a new trial, for the usual reasons: First, that the
verdict is against evidence, and against the instructions of the court; and the
court gave erroneous instructions, and refused the defendant's instructions.
In the first place, as these instructions given were not excepted to, and as
the refusal to give the defendant's instructions was not excepted to, it must not
now be expected to reverse the judgment of the Court of Common Pleas on that
account.
There was much conflicting evidence, and all the instructions given by the
court were hypothetical.
It is impossible for this court to know what the jury believed. They might
well have believed facts to justify their finding, under the instructions of the
court. The verdict of the jury appearing to be supported by the evidence in the
cause, and no exceptions being taken to the giving or refusing of instructions by
the Court of Common Pleas, the judgment must be affirmed.
This case is not so directly in point as the one which follows it. I
believe I meant to read the following case, and will now do so. It is the
case of Medlin vs. Platte county:
1. A., as principal, and J. and M., as securities, executed their nfne to Platte
county, for money borrowed. It appeared, upon the trial, that the name of
J., one of the securities, had been erased from the note, and M., the other
security, offered to prove that the County Court of that county, while in
session, verbally ordered the name of J. to be erased, without the consent of
M.  Held: That this evidence was inadmissible; that the records of the
County Court are the evidence of their official acts; and that all orders not
entered of record, are extra-judicial and void.
2. There is a distinction betweed the alteration and the spoliation of an instru   ment, as to the legal consequences. The first is usually applied to the act
of the party entitled under the instrument, and imputes some fraud or
design, on his part, to change its effect; the other refers to the unauthorized
act of a stranger, and does not change the legal operation of the writing,
so long as the original remains legible, and, if it be a deed, any trace re   mains of the seal.'
92 
HIGH COURT OF IMPEACHMENT.
TOMPKINS, Judge, delivered the opinion of the court.
The State of Missouri sued Hall Medlin and others in debt.
The action was brought on an instrument of writing by which Medlin and
two others promised to pay to the State $500. There were several counts in the
declaration, in some of which the plaintiff declared on the instrument of
writing sued on, as a sealed instrument, and in others as an unsealed
writing. The two other co-defendants being otherwise disposed of, a verdict
and judgment went against Hall Medlin in said count, and to reverse it he ap  pealed to this court.
The bill of exceptions shows, that the instrument of writing sued on was
given to the county of Platte for so much money borrowed from it by the
defendants, of whom John Allen was principal, and Stephen Johnson and
Hall Medlin, the present defendant, were securities, and that Johnson's name
was erased.
James H. Johnson, the first witness, introduced by the plaintiff below, states,
that by request he wrote the instrument of writing sued on, and saw said Allen
and Johnson sign it, and that immediately after they went to the court-house,
the court being then in session; that he was Treasurer of the county; that a
day or two afterwards the note was handed to him by the Deputy Clerk, and
that about a week after he gave the Clerk of the County Court a receipt for said
note or writing. He further states, that his recollection is not distinct, but he
thinks the name of Johnson was erased from said note at the time he received it.
The Deputy Clerk, who handed the writing to the Treasurer, thought that John son's name was not erased when he passed said writing to James H. Johnson,
the Treasurer; and the Treasurer succeeding to Johnson stated that he never
heard of the erasure of Johnson's name till he parted with the possession, and
that he did not believe it was erased before he parted with it. No order was
found on the records of the County Court to authorize either the loan to Allen,
on the security of Johnson and Medlin, or the erasure of the name of Stephen
Johnson.
John B. Collier, a witness of the defendant, stated, that when said instrument
of writing was accepted by the County Court of Platte county, he was a mem ber of that court; that when the writing was handed to the court the names of
the three makers were signed and affixed thereto; that he did not recollect how
long, after its reception by the court, it was until the name of Johnson was
erased; that no order was made accepting said Medlin and Johnson as securities
for Allen, but they were received verbally by the court.
The defendant then offered to prove, by this witness, that the said County
Court, whilst in session, and in open court, agreed verbally that the name of
said Johnson might be erased from said note, and that it was erased accordingly
by the authority of said court, without the knowledge or consent of Medlin.
This testimony was rejected by the Circuit Court, and the decision of the court
was excepted to.
The evidence being closed, the Circuit Court, on the motion of the plaintiff,
instructed the jury that the erasure of the name of Johnson could not release
Medlin unless it were made by the order of the County Court, while in session.
This is the substantial part of four instructions demanded by the plaintiff.
The defendant asked the four following instructions:
1. That if the name of the said Johnson has been erased from said writing since
the execution and delivery thereof, it is incumbent on the plaintiff to prove
that it was done by accident or mistake, or by the consent of Medlin, and that
in the absence of such proof they must find for Medlin.
2. That if the County Court of Platte county, whilst in session, gave leave to
said Johnson, or to any other person, to erase the name of said Johnson from
said writing, and that it was in pursuance of such leave erased therefrom, and
that it was done without the consent of Hall Medlin, then the jury will find for
said Medlin; and that it is not necessary that the order of the court, in order to
be binding on the plaintiff, should have been entered on the record book of the
court, and that the same may, at any subsequent term of said court, be entered,
nunc pro tune.
3. That if the County Court of Platte county, whilst in session, ordered Johnson's name to be erased from the note, and the erasure was made in pursuane of
such order, and without Medlin's consent, then they will find for him, said Medlin, whether that order was entered of record or not, and that it is the duty of
the plaintiff to show that the alteration was not made by the plaintiff, or by any
of the agents of said plaintiff.
93 
HIGH COURT OF IMPEACHMENT.
4. That if the jury believe the name of said Johnson has been erased from
said note, since its execution and delivery to the plaintiff, and that it was done
either by the plaintiff, or by any other person than Medlin, and without his
consent, then the note as to him is void, whether the erasure was made with or
without the consent of the plaintiff. These instructions were refused, and exceptions were taken to the decision of the court.
A new trial was moved for, for several reasons, which may be resolved into
one-that the court refused to give the instructions.
The defendant also moved in arrest of judgment.
Even had the defendant stood on his demurrer to the declarations, (which he
withdrew,) there could have been no reason to reverse the judgment for a
misjoinder. Chitty, in the first volume of his pleading, says, that debt on a
bond, or other specialty, may be joined in the same action with debt on simple
contract.
With regard to the instructions charged to have been erroneously given by
the Circuit Court, it may be observed, that, like other bodies corporate, and also
like persons, it will be presumed to accept whatever is for its interest to receive,
until it in some way signifies its dissent; but it will be presumed to part with
none of its rights till it has expressed its will on its records: the evidence then
offered, i. e., the testimony of one of the Judges, to prove that the several members of that court, while in session, assented to the erasure of Johnson's name,
&c., was inadmissible. The Judges of the County Court could express their assent to such an act on their record only; and it will then only be in season for
this court to decide whether such an entry of assent can be made nunc pro tunc,
when such an entry shall have been made by the County Court, but no such
entry being now made, this court must proceed as if it had never heard anything
of the assent of the Judges in open court.
The only question remaining, then, for this court to decide, is, whether the
instrument here sued on became void in consequence of the erasure of Johnson's
name.
In Greenleaf on Evidence, it is said, that the early decisions establish the
general proposition, that written instruments which are altered, in the legal
sense of that term, are thereby made void. The grounds of this doctrine are
two-fold. The first is, that of public policy, to prevent fraud, by not permitting
a man to take the chance of committing a fraud, without running any risk of
losing by the event when it is detected.  The other is, to insure the identity of
the instrument, and prevent the substitution of another, without the privity of
the party concerned.
A distinction, however, is to be observed, between the alteration and spoliation
of an instrument, as to the legal consequences.  The term alteration is, at this
day, usually applied to the act of the party entitled under the deeds or instrument, and imports some fraud or improper design on his part to change the effect.
But spoliation or mutilation of the instrument, not changing its legal operation,
so long as the original writing remains legible, and, if it be a deed, any trace of
the seal remains. If, by the unlawful act of a stranger, the deed is mutilated or
defaced, so that its identity is gone, the law regards the act, so far as the rights
of the parties to the instrument are concerned, merely as the accidental destruction of primary evidence, compelling a resort to that which is secondary. Thus,
if it be a deed, and the party would plead it, he cannot plead it with a profert,
but the want of profert must be excused by an allegation that the deed, meaning
its legal identity as a deed, has been accidentally, and without the fault of the
party, destroyed; and whether it be a deed, or any other instrument, its original
tenor must be substantially shown, and the alteration or mutilation accounted
for.See pages 600, 601. 
The old doctrine, that every material alteration of a deed, even by a stranger
and without the privity of either party, avoided the deed, was strongly con demned by Story, Judge, in United States vs. Spalding, (2 Mason, 478,) as re pugnant to common sense and justice; as inflicting on an innocent party all the
losses occasioned by mistake, by accident, by the wrongful acts of third persons,
or by the providence of heaven; and which ought to have the support of un broken authority, before a court of law was bound to surrender its authority to
what deserved no better name than a technical quibble.-ee note to the same
page of Greenleaf.
Under this law, as declared in the authority cited, (and there are many others
cited,) the county cannot be called on to prove the erasure of Johnson's name.
The County Court, the representative of the county, has entered up no order to
that effect;  it has made no order even, commanding its agent, the Treasurer, to
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HIGH COURT OF IMPEACHMENT.
do so; the Deputy Clerk, who delivered the writing sued on to the Treasury,.
says he does not believe that the erasure was made when he delivered the
writing to the Treasurer, Johnson, and although Johnson says he believes the
name was erased when he received the instrument from the Deputy Clerk, yet
the Treasurer who succeeded to Johnson testifies that the name was not erased,
as he believes, when the instrument of writing passed from his hands. More
satisfactory evidence could not be required of a person; but in this case the
plaintiff is a body corporate, speaking by its record only, and none of its agents
have authority to make such an erasure; two of those agents testify that the
writing passed from them undefaced.
But if those agents ever had defaced this instrument of writing, their act
could have been no other than the act of a stranger, they having no authority to
do the act, and no interest in the money due by the writing. The note was,
then, admissible evidence, and the judgment must be affirmed.
Senators will see (continued Judge Jackson) the application of this
law without any comment from me. I will now turn to the case in 12
Mo. Reports, page 598. It is directly in point. It was here decided
that "what a court of record does is known alone by its record; its
doings and proceedings cannot be established by parol testimony."
Judge Ryland delivered the opinion of the Court, which I will read:
This was a proceeding commenced originally in the Marion County Court,
taken thence by appeal to the Marion Circuit Court, and now brought before
this court by writ of error.
From the record it appears that on the 23rd day of April, 1847, the plaintiff,
James V. Milan, as administrator of the estate of Anthony Crockett, deceased,
caused a notice in writing to be served on the defendant, Richard Pemberton, as
the executor of Jane Wilcox, deceased, informing him that on the first Monday,
being the third day of May next, he, as administrator as aforesaid, would make
application to the County Court of said county for an allowance against the
estate of Jane Wilcox, deceased, on a note of which the following is a copy,
(viz:) "Twelve months after date we or either of us promise to pay Col. Anthony Crockett, or order, two hundred dollars for value received. Witness our
hands and seal, this 3rd day of October, 1833.
October, 1833.                                          JANE WILCOX
Witness: A. CROCKZETT."
At the July term of said County Court in 1847, judgment was rendered on
this application for allowance in faver of the defendant. The plaintiff appealed
therefrom, and the proceedings were duly certified to the Circuit Court, and at
March term, 1848, judgment in that court was again rendered in favor of defendant.
From the evidence preserved in the bill of exceptions, it appears that Jane
Wilcox being anxious to obtain the sum of $200, prepared the note of which
the above is a copy, and applied to Col. Anthony Crockett for the loan of that
sum. Col. Anthony Crockett did not lend the money to her, but William R.
Crockett did, and took the note, which she had thus prepared as above, from
her, from the payment, without any alteration; that is, took the note payable
to Col. Anthony Crockett, instead of to himself, being the note first prepared.
Thus the matter remained for several years. In 1838 Col. Anthony Crockett
died. Jane Wilcox died in the early part of the year 1843. Letters testamentary were granted on her estate, dated O20th March, 1843, and notice caling upon
the creditors to exhibit their demands for allowance against her estate, was duly
published in pursuance of the statute in such case provided, dated March
30th, 1843, and appeared on that day in the Missouri Courier, a public newspaper.
This application for allowance was made at the May term, 1847, of Marion
County Court, and notice thereof was served on the 23d day of April, 1847, after
a lapse of more than four years, from the date of the letters testamentary, and
from the publication of the notice to creditors. On the trial in the Circuit Court,
the plaintiff, in order to show that his claim was not barred by the statute which
requires claims and demands to be exhibited within three years, proved " that
on the 7th day of July, 1845, the note now sued on was presented to the
County Court for allowance; that it was so presented at the instance of William
R. Crockett; that Richard Pemberton, administrator of Jane Wilcox, the defendant, appeared therein before said court and waived notice, and several wit
915 
HIGH COURT OF IMPEACHMENT.
nesses were examined to prove the signature of the said Wilcox, but not being
able to prove the signature, the attorney, John D. S. Dryden, suffered a nonsuit,
and withdrew the claim; that no trace of said proceeding before the County Court
appears of record."
The defendant objected to all the evidence touching the presentation of said
claim to the County Court; but the court overruled the objection and heard the
evidence, and the defendant excepted to this opinion of the court. The plaintiff showed his letters of administration granted on the estate of Col. Anthony
Crockett, deceased, dated 23rd day of November, 1846, eight years after the
death of said Crockett.
The plaintiff moved the court to decide, that if it appeared from the evidence
in the cause that the note sued on was presented for allowance to the County
Court in July, 1845, and that Pemberton, as administrator of Wilcox, appeared
there, and waived notice of the demand; and the claim was subsequently withdrawn; that this constituted a legal exhibition of the demand. That the limitation of three years did not commence running till the date of the letters of
administration on Anthony Crockett's estate; and that an administrator is not
barred by the statute of limitations. All of which the court overruled: the
plaintiff excepted. The court found a verdict for defendant. The plaintiff
moved to set aside the verdict and grant him a new trial, which the court
overruled; and now plaintiff seeks to reverse this judgment of the Circuit
Court.
In our statutes concerning executors and administrators, article 4th, sections
5, 6, 12, 13, and 14, we shall find what the law contemplates as an exhibition of
a demand.  Section 5th is in these words: "Every person may exhibit his demand against such estate by serving upon the executor or administrator a notice
in writing, stating the nature and amount of his claim, with a copy of the instrument of writing or account upon which the claim is founded, and such
claim shall be considered legally exhibited from the time of serving such
notice."
Section 6. "Every executor and administrator shall keep a list of all demands thus exhibited, classing them, and make return thereof to the County
Court every year, at the term at which he is to mnake settlemnent."
Section 12.  "Every  person  desiring  to establish a demand against any
estate, shall deliver to the executor or administrator a written notice, containing
a copy of the instrument of writing or account on which it is founded, and
stating that he will present the same for allowance at the next term of the
County Court."
Section 13.  "Such notice shall be served on the executor or administrator
ten days before the beginning of such term of the court, and may be served by
any Sheriff or Constable, or by any competent witness, who shall make affidavit
to such service."
Section 14.  "The executor or administrator may appear in open court and
waive the service of any such notice."
From the testimony in this case, it is apparent that the plaintiff relied upon
what was done by him under the last cited clause of the statute. He proved
before the court, that he had offered this claim for allowance in the County
Court at July term, 1845, and that the defendant waived the notice in open
court.  That the claim was not sufficiently proved and was withdrawn.  There
was an objection to this proof by parol; there was no trace of any such proceeding on the record of the County Court.  The testimony was offered before
the court, and as there was no jury, it was right and proper i  the court to
hear the testimony first before it could determine upon its legality. The effect
of this testimony, its admissibility, its competency, were brought before the court
by the plaintiff's instruction.  Wre have no doubt that such evidence was improper; it was entirely inadmissible. No case has been found, where a party
has been permitted to prove before one court of record what he did, what proceedings were had and done before another court of record in a judicial investigation, by mere parol testimony. The acts, doings, judgments and proceeding
of courts of record are known by the records of these courts. Such proceedings
may often be amended; may be altered to suit the true state of facts; but there
is always something to alter or amend by. Here there is an attempt not to alter
or amend, but to make out a new subject matter altogether, and that too by the
testimony of witnesses. It is admitted that there is no trace of any such
proceeding as the one here proved by witnesses upon the records of the County
Court.
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HIGH COURT OF IMPEACHMENT.
There is no proof of the waiving of notice butbyparol.  Why does the statute
permit this waiver of notice only to be done in open court? Because it then is
put on record among the proceedings of the court in adjudicating upon the
claim. Had this waiver of notice been made in open court, and put on the
records of the court, or on the back of the note, or on any part of the demand
or claim, we should feel inclined to receive it as evidence of such an exhibiting
of the claim as might warrant the court in taking it out of the statute of limitations.
I feel satisfied that there was no evidence (that is, legal evidence) of any such
exhibition of this claim, as is required by law, before the County Court of Marion
in July, 1845; and consequently the Circuit Court committed no error in refusing the instructions first asked for by the plaintiff.
I see no reason why the statute of limitations should notrun against an executor or administrator.
But in this case William PR. Crockett might have presented this claim against
the estate of Mrs. Wilcox at any time he might have thought proper.  He was
the bona fide holder of the note, and the real owner.  He loaned the money to
Jane Wilcox, and he might have used the name of Anthony Crockett any time
before his death in order to collect this money; and from the parol evidence
which was offered, we see that in 1845, after his death, and before administration, was presented the note in the County Court.
He waived and delayed too long.  The Circuit Court committed no error in
finding for the defendant, no error in overruling the motion for a new trial, and
the judgment is affirmed.
I rely upon the law as decided by the Supreme Court in these cases.
It leaves no room to question the propriety of my objection to the at tempt made here to prove by parol testimony my acts as a court, in
the face of the declaration of the Supreme Court that what a court of
record does is known alone by its record, and that its doings and pro ceedings cannot be established by parol testimony.  I shall leave the
matter here till I hear from the managers.
Mr. KNorTT.  May it please the Court, I can hardly deem the positions
assumed by the respondent as worthy of a serious reply. It is true that
as long as a court keeps itself within the scope of its legitimate functions
as a court, any act or fact which is made a matter of record must be
evidenced by the record. But this principle can have no application in
the present case.  The conduct of the Judge in court, concerning which
we are inquiring, is not a matter of record.  It cannot properly be made
a matter of judicial record, and for this simple reason it is not to be
proved by record evidence. Now, for instance, if the fact were in issue
whether a writ of mandamus to Jonas Eaker had ever issued, or if the
inquiry was as to what judgment was entered by the court, there would
be some point in the objection of the respondent.   But we are investigating a matter of a very different nature, the history of which could not
be detailed in the record. We want to know something of the conduct
of the Judge upon the bench-his demeanor, his bearing and language.
Suppose that in this or any other State a Judge were impeached for appearing on the bench in a state of beastly intoxication, and thathe had
been acting as Judge while in that disgraceful condition; would the fact
that a statement of that condition did not appear on the records of the
court estop the prosecution?  Will it be said that a Judge may arise in
his seat and pour a volley of villainous vituperation upon the devoted
head of somie unoffending party, and yet that the only evidence of the
fact in a Court of Impeachment would be the record of the court where
such a thing was done? I repeat that if the respondent had, by his answer or otherwise, put in issue the fact of the issuing the mandamus, we
would go to the record for proof on that point. Nobody controverts the
position, and every reasonable man must be confident, that a judicial
proceeding can be proved alone by the record. But suppose a charge of
the obliteration of the record were under investigation; suppose the
7
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HIGH COURT OF IMPEACHMENT.
Judge was charged with burning it up-who will tell us that the only
competent evidence must be found in that very record? Such a thing
is absurd in the extreme. The existence of a certain judgment, the filing
of an answer, or demurrer, the disposition of the same-all such proceedings are made a part of the record, and to such the authorities cited by
the respondent refer. But there are a thousand other matters which
have no place on the record; and in a proceeding of this kind it becomes
necessary to establish more or less of them. The facts alleged by us
concerning the matters appearing of record are not controverted by the
respondent; if they were, we would seek record proof. In the cases of
Judges Peck and Chase, all questions of this nature concerning the
conduct of the accused-were investigated by means of parol testimony.
In fact that is the only legitimate source of evidence on such points. In
almost every impeachment case that ever occurred, it is not so much the
irregularity of the action of the accused which has been complained of,
as the malice involved in that irregularity; and the existence or nonexistence of malice is the vital point upon which the bare record of judicial proceedings will generally be silent. To sustain the objection of the
respondent in this instance would not only be a palpable violation of the
plainest rules governing the admissibility of evidence, but would be a
virtual denial of the right to impeach a Judge at all, for it would render
a successful impeachment almost impossible. But I will leave my colleague to discuss this matter further if he sees proper.  As for myself, I
think it too plain for argument.
Mr. HARDIN.  May it please the Court, I do not think it at all necessary to debate the question raised now by the respondent. He demands
record evidence, and of what? There is nothing as to the record involved in the question propounded to the witness.  We have alleged
that he oppressed Judge Eaker willfully and maliciously. We desire to
show his malevolence by his acts, and to this end the question is directed.  It is true that the record is evidence of the facts appearing of
record, and we expect to have use for such proof.  We may even have
to show that the records in some cases do not state facts, because they
have been mutilated or falsified. But all that has nothing to do with
the present testimony, to which I cannot see that there is the shadow
of a sensible objection. I entirely concur with my colleague in the view
expressed by him of the authorities cited by the respondent. They
establish the principle that a record fact must be proved by the record,
and not by parol testimony. They go no farther, and they have no application to the case in hand.
SE'ATOR PARSONS.  Before the respondent proceeds with his concluding remarks on the question now before the Court, I would like to turn
his attention to a question arising in my mind, and which I conceive has
some bearing upon the matter in controversy. I find in the answer of
the respondent, under the head of Article I, the following:
I First. He wholly and fully denies that at the May term of the Circuit Court of
Stoddard, begun on the third Monday in May, 1858, in said county, in his offi cial capacity, or under color of his office, he did willfully and maliciously con duct himself in a manner highly oppressive and unjust to one Jonas Eaker.
To specification first of said article, said Albert Jackson says that he did not
desire to oppress and harrass said Jonas Eaker, and did not maliciously and un justly cause to be issued against said Eaker an attachment as for a criminal con tempt; that, in his official capacity, he knew nothing about the manner in which
said writ of mandamus had been executed on said Eaker, etc.
Now, the question I ask Judge Jackson is, whether he intended by
this to set up the plea of nul ties record, or whether he only intended to
negative the allegation of malice and oppression set forth in the articles
of impeachment?
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HIGH COURT OF IMPEACHMENT.
JUDGE JACKSON. Yes, sir. I will speak of that directly. I can't help
but admit that I feel very much embarrassed, not so much by anything
here to be done, as by the way the proceedings against me are conducted.
Now, I am charged with oq'cial misconduct.  I have labored from the
start to find out what offcial misconduct I am charged of being guilty
of. The articles did not tell me, and nothing told me, and in the whole
speech of Mr. Knott I was not told what official acts were complained of.
It did come out, though, that this whole thing is founded upon a little
section of the criminal code about misdemeanors in office. There it is
held I am liable to indictment for misdemeanors in office. I don't suppose that any Judge would look at this little statute like Mr. Knott
He advances the most astounding doctrine. You Senators, for your official acts, are indictable, according to Mr. Knott. But that is not all.
How would he prove you guilty of official misconduct? Not by the statutes you pass-not by your journal of proceedings-but by oral testimony.  IHe would arraign you and prove by oral testimony all about
your tone of voice, demeanor, and personal acts.  He can do this just as
well as he can arraign a court of record with oral testimony for official
misconduct. What are the official acts of a Judge? Why, they are the
doings, acts, and judgments that are recorded in the records of the court.
But Mr. Knott says the acts he complains of are not in the record. That
is the truth at last.  I knew all the time that it would turn out so; it is
not in the record. All these accusations are really about things that
were not official-personal and individual objections to me.  Not a single
witness and not a juror complains; but it is only some dissatisfied persons who dislike me personally, and they are brought up here to swear
against me, in some instances I doubt not for pay. Now the question~
is, can you try me for things that are not official, and not on the record?
They want to go outside of the record to come at my tone of voice.  If
I have been guilty of any improper, indecorous, or impolite conduct, I
would not shrink from an investigation of it.  Guilty or not guilty, I
wouldn't shrink from an investigation, if I had a fair chance to defend!
myself.  But no man's conduct, let alone any Judge's, will stand a test,
of this kind, unless he knows beforehand what he must defend. I
shrink from such an investigation more than I would shrink from death
But I have never had any fear of your proceedings. Outside of the wishes
of persons whom I know have been kind to me, I care nothing for this
trial. They want to bring persons here whom I know have been hired
to swear against me to prove my conduct. I simply object that my official conduct is all matter of record, and you have no jurisdiction of any
charge against me, except official misconduct. Now what is this charge?
I will read it:
ARTICLE I. That, unmindful of the sacred obligation by which he stood bound
to discharge the solemn duties of his office faithfully, impartially, and consistently with the dignity and importance of the trust reposed in him, as Judge of
the Fifteenth Judicial Circuit, in the State of Missouri, the said Albert Jackson,
at a Circuit Court begun and held at the town of Bloomfield, within and for the
county of Stoddard, in the State of Missouri, on the third Monday in May, A.
D. 1858, (whereat the said Albert Jackson, by virtue of his office aforesaid, did
preside as Judge,) did willfully and maliciously conduct himself in a manner
highly oppressive and unjust to one Jonas Eaker, viz:
First. The said Albert Jackson, desiring to harrass and oppress the said Jonas
Eaker, did, at the Circuit Court aforesaid, whereat he, the said Albert Jackson,
presided as Judge, as aforesaid, cause an attachment to issue against him, the
said Eaker, as for a criminal contempt, because said Eaker did not make return
to a writ of mandamus, which writ had never been delivered to said Eaker, but
of which a copy had been delivered to said Eaker; by virtue of which attachment the said Jonas Eaker was arrested and held in custody for several hours,
and released finally by said Albert Jackson, on condition that he, the said Jonas
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: 1.: I." 
HIGH COIURT OF'IMPEACHMENT.
Eaker, should make return to the copy that had been delivered to him, said Jackson well knowing that said writ had never been legally served upon him, the said
Eaker, and that he was not in contempt for not answering thereto.
Second. In refusing to permit counsel for said Eaker to speak in his behalf,
when they proposed to show to the court that said writ of mandamus had never
been properly delivered to, or served upon him.
Third. In peremptorily, and in an oppressive, angry, and insulting manner,
ordering the counsel of said Eaker, to-wit, Solemon G. Kitchen and William G.
Phelan, to shut their moutlhs and sit down, when they, in behalf of their said client, attempted to suggest an insufficiency in the service of said writ of mandamus.
Fourth. In depriving said Jonas Eaker of the benefit of counsel, and of the privilege of speaking through such counsel in his own defense, as he had a lawful
right to.
Now, here they charge a breach of the "solemn duties " of my office.
I will now read my answer:
ARTICLE I. The said Albert Jackson, Judge of the Fifteenth Judicial Circuit,
savin-g and reserving to himself the benefit of all mistakes and irregularities
which now exist, which have been or may be made, in any and all the pro.ceedings, the proceedings heretofore had, or which may hereafter be had, and
denying to the House of Representatives the right to alter, amend, modify, or
withdraw any part or portion of said articles, or at any time hereafter to exhibit
any other or further articles of impeachment herein; for answer to so much of
said articles as he deems it necessary for him to answer or respond to, says that:
Fi,;st. He wholly and fully denies that at the May term of the Circuit Court
of Stoddard, begun on the third Monday in May, 1858, in said county, in his
official capacity, or under color of his office, he did willfully and maliciously
conduct himself in a manner highly oppressive and unjust to one Jonas Eaker.
To specification.first of said article, said Albert Jackson says that he did not
desire to oppress and harrass said Jonas Eaker, and did not mealiciously and unjustly cause to be issued against said Eaker an attachment as for a c-iasinal cointempt; that, in his official sapacity,he knew nothing about the manner in which
said writ of mandamus had been executed on said Eaker. The said Eaker admiitted said writ had been served on him, but refused to make return to said writ;
then an attachmenelt was issued against said Eaker for contempt of court, by refusing to make a proper return on said writ, as will appear by the papers and
record in relation thereto.
For answer to specification second, he says he did not refuse to hear counsel
speak for said Eaker after his appea?eanLce, but when  Eaker made return to the
writ he was discharged from the attachment without a penalty; does not know
that said Eaker was in custody several hours; thinks he was not; but that he
came into court and asked for time to answer, which was granted.
Thir?d. Said Jackson did not peremptorily, and in an insulting and eppressive
manner, order the counsel of said Eaker, to wit, Solomon G. Kitchen and Williamn G. Phelan, to shut their mouths; said Jackson did not know they were
counsel for Eaker; they said they were not, but claimed the right to appear as
the next friend of the court.
Fourtth. Did not deprive said Eaker of counsel, and of the privilege of speaking through counsel, in his own defense.
Said Jackson says that article first, and specifications 1, 2, 3, and 4, are insufficient in law, and do not contain charges of at nature and degree that would warrant a conviction in an impeachment.  The said Jackson has the right, by virtue
of his office, to issue writs of mandamus to an inferior court, and enforce by
attachment the return of every writ or process sent out of said Circuit Court.
Now, I would ask how my official doings in this case are to be investigated? The statutes provide that the decisions of the Supreme Court
have the force of law, and must govern all similar cases. I have shown
you that the Supreme Court has decided that the acts and doings of a
court of record can be known only from the record. My acts and
doings as a Circuit Judge can only be known then in that way, and you
can't try me for anything else. But if the Supreme Court had not
decided this way, the law of evidence would be enough. I appeal to
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HIIGI COURT OF IMPEACHMENT.
every lawyer on this floor to know if it isn't the universal rule of law
that the best evidence must always be produced. Now, what is the best
evidence of the solemn acts of a court of record? Why the record
itself I am always ready to meet my record. Well, but they say, if
you did not do the things mentioned in the record in a smooth, silvery
voice, we want to prove that by oral testimony. Well, I can't think it
matters to this Court whether I did or not.  But, says Mr. Knott, suppose the records were burnt up.  Well, if they were, there is a way to
supply their loss. If the record is burnt up or destroyed, they can call
in the Clerk and other officers of the court to prove the loss and contents. I here assert that all my official acts must appear on the record
and do appear there. All acts not appearing there are individual acts;
and if these acts complained of were individual, and not judicial, I am
responsible for them as an individual and not as a Judge.  If I oppressed Eaker in this way, why didn't he bring suit against me?  I am not
publicly answerable if I am not privately. But no, they couldn't annoy
me enough by a private suit. Besides, they didn't wish to become
liable for costs. I have dwelt this long on this point because it is an
important one in this trial. I leave it now for the action of the
Senate.
The question to which Judge Jackson had objected was then decided
pertinent and proper by the following vote:
AYEs-Messrs. Brown, Byrne, Churchill, Coleman, Frazier, Goodlett, Gullett,
Halliburton, Harris, Corner, McFarland, McFerran, McIlvaine, O'Neil, Parsons, Peyton, Rains, Richardson, Scott, Thomenpson, Vernon, and Wright-22.
NoEs-Messrs. Hedgpeth, Morris, Newland, Wilson, and Wood-.5.
Ab.sent-Mcssrs. Fox, Hyer, Johnson, Jones, Robinson, and Watkins.
The question being read to the witness, he was proceeding to answer,
when
JuDGE JACKSON objected to the witness making any statement about
the attachment. The question he said was upon the mandamus.
The question was then re-read to the witness, and he answered as
follows
Mr. Eaker was brought into court by an officer, and the Judge informed him that he was in contempt for not making a return to the
mandamus. I may as well state that I had no knowledge of the mandamus before this conversation between the Judge and Mr. Eaker.  I
had no knowledge of the original writ. Eaker replied that he had
never been served. Then followed some conversation between the
Judge and iMr. Baker in relation to the service, which I cannot repeat
exactly. Mir. Eaker said in effect, that only a copy of the writ had been
given him, and that he had never seen the original. The Judge told
him that he should have made a return anyhow. Some more conversation took place, when Mr. Kitchen and Mr. Phelan, I think, arose, and
attempted to address the court on the subject. Judge said it was not a
case for argument; that it was not a case for counsel. One of them
said something about appearing as the next friend of the court. Judge
Jackson ordered them to sit down, and to stop addressing the court.
They did so. After some time, Mr. Eaker stated that he would make a
return on the copy of the writ of mandamus, or whatever it was, (I
cannot state from my own knowledge the character of the instrument.)
Mr. Baker then went away somewhere, and that was the last I saw of
it. What further was done I cannot state.
Q. What was the conduct or manner of Judge Jackson during this
affair?
A. It was like that of any other Judge on the bench, or at least his
usual conduct. He was urbane as usual, and I saw no manifestation of
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HIGH COURT OF IMPEACHMENT.
anger or ill-will until some pretty sharp words passed between Mr.
Kitchen, Mr. Phelan, the court, and Mr. Eaker. Then they all four
seemed to be excited and angry, and the Judge spoke in a very harsh
tone —not in his usual manner.  Hie seemed very much provoked, very
much out of temper, and I think he ordered them to shut their
mouths.
Q. You say you knew nothing about the original process in this
case?
A. I knew nothing about it previously.  My understanding was had
from what took place after Mr. Eaker was brought in by attachment.
Q. Did Messrs. Kitchen and Phelan appear as counsel for the respondent to the mandamus?
A. They did. I do not recollect that they announced themselves as
counsel, but from their proceedings one lawyer would understand another as doing that.
JUDGE JACKSON. Didn't they say they were not counsel in the
case?
A. Yes, they stated something to that effect.
Mr. KNOTT. That was after the Judge had informed them that it was
not a case for argument, or in which counsel could appear?
A. Yes, sir, it was after that.
Q. Were you at the Wayne county Circuit Court, September term,
1858?
A. Iwas.
Q. Was Judge Jackson there presiding?
A. He was.
Q. Were you present in court when the case of Limbarger vs. Powers
was tried?
A. I was there part of the time, and witnessed a portion of that trial;
cannot say that I witnessed it all.
Q. Please state to the Court what you know in relation to that trial,
and the conduct of Judge Jackson in connection with an application
for a change of venue in the case.
A. An application was made by one of the parties for a change of
venue.  Messrs. Fox and Pipkin, the counsel engaged in the cause, suggested Madison or some other county as convenient to all parties.
Madison county adjoins Wayne.  As to the other county, I am not certain. It was in my mind at the time that it was not remote. Judge
Jackson told the counsel that it was the province of the court to fix the
county to which the cause should be sent. After some debate about the
matter he sent it to Mississippi county.
Q. In what part of the State is Mississippi county?
A. In the south-east.
Q. How far from the county seat of Wayne?
A. I cannot state the exact distance; by the usual mnode of travel it
is more than one hundred miles. 
Q. Was this fact represented to the court?
A. It was. Both parties protested against the case being sent there.
Among other objections urged, I think Mr. Pipkin remarked that he
couldn't attend the Mississippi court, and that if the case was sent there
he would be compelled to abandon the cause of his client.  Judge
Jackson remarked in reply that he believed there was counsel in Mississippi county; that there was good counsel there, or something to that
effect.
SENATOR PARSONS. I want to understand if the case was sent there
against the consent of counsel on both sides?
WITNESS. It was objected to by both counsel.
JUDGE JACKSON.  Who were the counsel engaged in the case?
102 
HIGH COURT OF IMPEACHMENT.
A. Mr. Fox and Mr. Pipkin.
JUDGE JAcKsox.  Were they not both on the same side of the case?
A. That was not my understanding of the fact.
Mr. KXOTT.  What case was this?
A. The case of Limbarger vs. Powers.
Q. Were you present at a Circuit Court held for Dunklin county,
commencing on the second Monday of May, 1858, during the pendency
of applications for change of venue in the cases of Smith vs. Cude, and
of a certain road company vs. Mloses Farrar?
A. I am not certain I was in court during the trial or evidence upon
those cases.
Q. Were you present at a Circuit Court in Butler county, held at Poplar Bluffs, in May, 1858?
A. I was.
Q. Were you present at the trial of the case of Gibson vs. Dunn?
A. I do not remember that I was.
Q. Well, Mr. Tyrell, state to the Court, if you please, what you may
know in relation to a habeas corpus writ in the case of the State vs.
John R. Maine, before Judge Jackson in January last?
A. I drew the petition in that case. I presented it to Judge Jackson.
The writ was issued, and the prisoner brought before the Judge by an
officer.  I call him an officer; I presume he was.  His name was Sutfirm. The prisoner, John R. Maine, was in his custody. The writ was
served upon J. J. Jackson, the Deputy Sheriff of Stoddard county, who
said the prisoner was in his custody. But he was in the actual manual
custody of Sutfirm. He was brought before the Judge in nay office.
Think at that time, according to the best of my recollection, the return
to the writ showed no written examination of witnesses against the accused. That at least was one of my reasons for suing out the writ, and
as well as I recollect, that was the character of the return. After the
return was made7 J. J. Jackson came in and left the mittimus. I am
not able to state precisely the facts. I never saw the prisoner until he
was brought into the office in custody of the officer, and I then talked
to him for the first time pending the proceedings. Afterwards, or
about this time, the Judge examined the mittimus, and pronounced it
insufficient.
[Judge Jackson here handed the witness a paper, requesting him to
examine it, and pronounce upon its authenticity. The managers demanded an inspection of the paper before it was subjected to the examination of the witness. Considerable discussion ensued, which is here
omitted.]
When the Deputy Sheriff came in, perhaps I wrote the return to the
writ for him. I believe it is my handwriting, signed James Dowdy,
Sheriff, by J. J. Jackson, deputy. I could not state the exact nature of
the return without looking at it. I think it was as I have stated.
Q. What reason was assigned by Judge Jackson for discharging the
accused?
A. It was some insufficiency in the mittimus, but I am not able to say
positively what it was.  I remember distinctly his remarking that the
warrant was not sufficient, for the reason that the accused had been before the Justice on a charge of larceny, but there was no showing that
the Justice had found there'was sufficient reason to believe that an offense had been committed.  I remember this, because one of the reasons
I urged for the discharge of the prisoner was that the mittimus did not
show that there had been an examination, and that the testimony was
not reduced to writing. That is my recollection of it, and I only state
the substance. The Judge said that such a defect might be cured;
that the point I urged concerning the absence of an examination would
103 
HIGH COURT OF IMPEACHMENT.
not be good if the mittimus showed that the Justice had found there
was sufficient reason for a commitment.
Q. Did the Judge make any rule or order upon the officer to produce
the papers in the case, or any papers?
A. He did not, that I know of. He may have done so.
Q. Did he inquire if there had been an investigation of the facts of
the case by the Justice?
A. He may have made such an inquiry. I am inclined to think he
did.
Q. What reply was made?
A. I can't say..
Q. Did you detail the facts to the Judge?
A. I did detail to him my understanding of them. I was counsel for
the accused.
Q. Were you present when one Charles Russell was brought before
Judge Jackson by writ of habeas corpus?
A. I was.
Q. When was that?
A. It was on the same day-in the morning of the same day.
Q. Detail if you please the facts in that case.
A. As well as I can remember them.  Russell was arrested and
brought before Jonas Eaker, a magistrate, the day before the occurrences we have been speaking of An examination of the usual character was had, and at its conclusion, Judge Eaker announced that he
would commit the accused; or rather said he would hold him to bail.
He was asked to give the accused till 10 o'clock the next morning to get
bail in the amount required.  To this Judge Eaker assented, and the
prisoner was placed in charge of the Constable, to hold till that time.
That evening I presented to Judge Jackson a petition for a writ of habeas corpus; a writ was accordingly issued, and returned served, at my
office, the next morning. Cryts, the Constable, in whose custody the
prisoner was, returned that he held him by virtue of parol or verbal orders from the magistrate, Eaker. I do not remember that there was
anything in the return about an examination. After some time, and
considerable talk, the purport of which I cannot now state, I believe
the return of the Constable was amended, or corrected, once or twice.
Cryts went out, and after being gone a short time, brought in some papers, and gave them to the Judge, or laid them before him. The Judge
examined them, and I think I did the same.
Q. What were those papers?
A. I think they were a mittimus and an original warrant for the arrest of the prisoner.
Q. What did the Judge do with them?
A. Judge Jackson told the officer he was too late; I think he added
something to the effect that the papers brought in contradicted the return made to the writ of habeas corpus; that the officer's acts contradicted his return, or something of that kind. 
Q. Was the discharge of the prisoner before or after this?
A. It was afterwards. I remember that I was somewhat disturbed
upon seeing the papers come in; it startled me somewhat, and I remarked that it was too late after the return already made.
JUDGE JACKSON.  Hadn't the prisoner been discharged before the papers came in; and wasn't I engaged in writing out the discharge at the
time?
A. I am pretty clear, Judge, that the prisoner was not discharged
until after the papers came in.
JUDGE JACKSON. Didn't I discharge the man before, and simply wait
to write the discharge with that of the other case?
104 
HIGH COURT OF IMPEACHMENT.                       105
A. Such is not my recollection; I am pretty clear to the contrary.
Mlr. KNOTT. How long before the discharge of both these men were
the papers you speak of brought in?
A. It may have been half an hour, or an hour.
Q. Well, what reason was assigned by the Judge for the discharge of
Russell?
A. I believe it was that the return showed no cause for holding him
in custody.
Q. Was the nature of the accusation against Russell known to the
Judge?
A. I think it was. At least it was known to the Judge that the man
had been before Judge Eaker on a charge of passing counterfeit half
dollars, or of passing counterfeit money. On the evening before the
discharge I may have stated the facts myself, when I presented the pe tition.
Q. I refer particularly to the facts of the arrest, the charge, the ex amination, and placing the prisoner in custody till he should procure
bail. Were they detailed to the Judge?
A. I am quite clear that all the facts concerning the case were communicated to him.
Q. Where was this?-the hearing upon the return to the writ, I
mean.
A. In my office, in Bloomfield.
Q. Where was the examination before the committing magistrate
had?
A. Judge Eaker held his court in the same building.
Q. Did Judge Jackson, when the return was made, inquire of the officer concerning the examination and commitment?
A. I think so. The Judge had a conversation with Cryts about the
papers.
Q. What was that conversation? What did Cryts tell him?
JUDGE JACKSON objected to this question, alleging that it would elicit
hearsay testimony. A short discussion ensued, during which the question was reduced to writing, as follows:
Did the Constable, William F. Cryts, communicate to Judge Jackson
the circumstances under and the authority by which he held the body
of Charles Russell in custody?  If so, what was it Mr. Cryts said to
Judge Jackson in your presence and hearing?
The question was ruled to be proper by the following vote:
AYEs-Messrs. Brown, Byrne, Churchill, Coleman, Frazier, Goodlett, Gullett,
Halliburton, iarris, Hedgpeth, Horner, McFarland, McFerran, McIlvaine,
Morris, Newland, O'Neil, Parsons, Peyton, Rains, Richardson, Scott, Thompson, Vernon, Wilson, Wood, and Wright-27.
NoEs-None.
Absent-Messrs, Fox, Hyer, Johnson, Jones, Robinson, and Watkins.
WITNESS. In the conversation I heard, Cryts stated, in substance,
that he held Russell by reason of a charge or order of Judge Eaker,
before whom he was accused of passing counterfeit money. That was
the substance of his communication; I cannot give his words. At the
time I had something to say about it myself, and was, in fact, a party to
the conversation. Cryts had but little to say before he went out and
brought in the papers.
Q. You say the accused was discharged after this?
A. That is my impression.
Q. Well, Mr. Tyrell, were you present at the Ripley Circuit Court,
held on the fourth Monday in April, 1858?
A. I was. 
HIGH COURT OF IMPEACHMENT.
Q. Were you present at the trial of one William Kinsey, on an indictment for grand larceny?
A. I was present at that trial.
Q. Who acted as counsel for the defendant then?
A. Mr. Fox and Mr. Phelan; I do not now recall the other counsel of
the prisoner.
JUDGE JACKSON here presented a paper to the Court of the nature of
a bill of exceptions, excepting to the ruling of the Court on the question above to which he had objected.
The managers opposed the filing of this bill of exceptions, taking the
ground that there was no law providing for any appeal from this Court,
and asserting that it would be a useless expenditure of time to file exceptions during the progress of the trial.
The question then being, shall the respondent be allowed to file the
paper? the vote stood as follows:
AYEs-Messrs. Gullett, Hedgpeth, Morris, Newland, Scott, Wilson,  and
Wood-7.
NOES-Messrs. Brown, Byrne, Churchill, Coleman, Frazier, Goodlett, Halliburton, Harris, Horner, McFarland, McFerran, McIlvaine, O'Neil, Parsons,
Peyton, Rains, Richardson, Robinson, Thompson, Vernon, and Wright-21.
Absent-Messrs. Fox, Hyer, Johnson, Jones, and Watkins.
So the motion to file the paper was overruled, and the examination
of the witness proceeded as follows:
Q. You will please state, Mr. Tyrell, what you know in relation to the
demeanor of Judge Jackson during that trial-his conduct to counsel
and parties-so far as you observed it.
A. The only things out of the regular and usual course of such trials
that I observed, I will state: A witness for the prosecution was placed
on the stand; one of defendant's counsel, (I cannot say which, though
it was Mr. Phelan, I think,) desired the witness to narrate the circumstances to which he was testifying, slowly, in order that he might have
an opportunity of writing them down. Judge Jackson said the witness
was not brought there for the purpose of having his testimony written
out, or something to that amount; he said the counsel, if they desired
it, could take the testimony down afterwards, or that he had no objection to taking the testimony after the examination was concluded.
Q. Is it customary in your courts for counsel to save the testimony as
it is delivered, or is it the practice to wait till the trial is concluded?
A. I have seen a great many cases both ways. It is not usual, I believe, in the cases of minor importance to write out the evidence as the
trial progresses; in important cases the other practice prevails.
Q. Were you present throughout the trial of this Kinsey case?
A. I was present most of the time.
Q. You will please tell the Court what you observed of the deport ment of the Judge and lawyers, during the argument.
A. There was what I would call a considerable squabble,mong them.
There were many harsh words used on both sides.
Q. Can you tell us what was said?
A. I do not recollect.
Q. I will call your attention to what occurred between the Judge and
Mr. Fox, particularly.  Were you present when Mr. Fox made his argu ment to the jury?
A. I was. He was several times interrupted by the court, with harsh
comments on his remarks. Finally the Judge ordered him to sit down,
in a severe, imperious manner.
Q. Was Mr. Fox in the discharge of his lawful duties as an attorney?
A. I so considered it. lHe was presenting the case of his client to
the jury.
106 
HIGH COURT OF IMPEACHMENT.
Q. What was his manner, before interrupted?
A. It was certainly respectful, sober, and I saw no objection to it.
When interrupted by the court, he retorted; and, as I said before, sharp
words passed between them, which I could not pretend to give.
Q. Did Mr. Fox sit down when ordered to do so?
A. He did. 
Q. Do you recollect, particularly, any remark made by him on the
occasion?
A. I do not.
Q. Who was acting as Circuit Attorney at that time?
A. I think it was Mr. Woodsides-John R. Woodsides.
JUDGE JAcKsoN. You say, Mr. Tyrell, my manner on this occasion was
very hard or harsh; could you tell the Court in what the harshness con sisted? Was it in looks, words, tone, or what was it?
A. I cannot better describe it than by calling it harsh; the word is
English; I suppose it is understood.
JUDGE JAcKsON. Couldn't you tell us what it was? Could you imitate
my actions and looks then?
A. I could not undertake to do so. Your manner was imperious and
commanding.
Mr. KNOTT.  We would like to proceed with the examination of the
witness without interruption. Mr. Tyrell, were you present at the November term of the Stoddard Circuit Court, 1858, pending the case of
Gustavus Berry vs. John Griffie?
A. I was.
Q. Will you please state the conduct of the Judge during the pendency of that suit, what he said and did, as succinctly as possible?
A. I was one of defendants counsel in that case. It was, if I remember rightly, an action for damages, and something was alleged about an
agreement to work on land, and a breach of the contract. A question
was asked by counsel on the opposite side, in substance, as to who was
the owner of the land in question. I objected to the question, and some
discussion was had over it. I cannot now state the precise ruling of
the court in regard to it, but the Judge about that time turned round,
while I was excepting to the witness or attorney talking on the subject
to the jury, and remarked that very likely the defendant had no interest in the land that he could convey. I objected to an instruction from
the court in that form and manner, as improper and unfair, and received
some harsh reply. The cause went on, but was several times interrupted by remarks from the Judge; and from the character of those
remarks, it was very evident to the defendant and his counsel that the
Judge had made up his mind in regard to the case, and that we could
not have a fair trial. I so remarked at the time.
JUDGE JACKsoN.  Didn't I order you to jail for it?  If I didn't, I
ought to have done so.
WITNEss.  I do not wish to be understood as saying that I  poke to
you of your prejudice at the time.
Mr. KNOTT.  Well, what was the result of the case?
A. The jury rendered a verdict for the plaintiff for considerably more
than the petition asked. I filed a motion for a new trial, stating among
other reasons in support of the motion, that the jury had been influenced by the remarks and comments of the court, in making up their
verdict. As to the remarks, I proposed to adduce the affidavit of myself and others, to prove that the verdict was based on them. I will
not be understood as saying that such affidavits were made; I merely
proposed to take them in support of the motion. This motion, however, was overruled, the court refusing to consider the affidavits. I then
filed a motion in arrest of judgment. One of the reasons on which this
107 
HIGH COURT OF IMPEACHMENT.
motion was based was, that the verdict was for more than the plaintiff
had alleged to be due him. This last motion was five or six days after
the trial of the cause. It was overruled. After this, the same day, or
the day after, Mir. Bedford filed a motion to enter a remitter for the excessive verdict; but before this was entered, I presented a bill of exceptions. The Judge signed it, but not till after striking out of the bill of
exceptions a part of the reasons stated in the motion papers for a new
trial and in arrest.
Q. You say the Judge signed the bill of exceptions?
A. Yes, sir; but I was compelled to strike out most of the reasons
urged in the motion papers.
Q. Was the evidence incorporated in your bill of exceptions?
A. It was not.  I presented the evidence agreed upon by lMr. Bedford
and myself, as the testimony had in the case.  The Judge refused to
examine the paper.  I urged the matter upon him as well as I could.
I called his attention to several points in the testimony which I thought
he would recollect. But he said that as he couldn't get up the whole
testimony, on account of there having been so much noise, or because
he did not know what it all was, he would not sign any.
Q. Did the testimony you presented embody the facts in evidence
before the jury as they were detailed on the trial?
A. It did, sir.
Q. And you say the court refused to look at, or examine it, and refused to let it become a part of the bill?
A. He did so refuse.
Q. I believe you stated that the counsel on both sides were agreed as
to the correctness of this evidence?
A. If I did not, I say so now.
Q. When did you say a motion to enter a remitter was filed?
A. I believe it was the next day. At any rate, it was after this time
of which we have just been speaking.
Q. What became of your case?
A. It is now pending before the Supreme Court.
Q. Did you get the evidence before that court at all?
A. We were not able to do so.
Q. You will please explain the manner of preparing bills of exception
in the courts of your circuit generally,-whether each exception is made
the subject of a separate bill, drawn and signed at the time, or whether
all the exceptions or points saved during the trial are embodied in a
single bill and presented at the conclusion of the trial.
A. So far as my limited practice has enabled me to observe, the exceptions are generally all embodied together. In preparing a bill the
attorneys usually refer to matters that they are not able to introduce in
brackets, writing, "here insert testimony," or, "here insert a certain
motion," as a direction to the Clerk. The testimony is usually prepared
separately, and signed separately by the Judge. This is the practice
so far as I have examined.
Q. Were you present at the same term of the court when the case of
Daugherty vs. Whitehead was tried?
A. I was.
SENATOR PARSONS desired to ask the witness a question before leaving
the point upon which he had just been examined. The question pro pounded was as follows:
What part of the bill of exceptions did the Judge require you to
strike out?
A. Some of the reasons urged in support of the motions in arrest
and for a new trial. B3y reasons, I mean causes assigned in the motion
papers.
108 
IIIGII COURT OF IMPEACHMENT.
SENATOR PARSONS.  I wanted to know what the reasons were.
A. I can give them by refreshing my memory from papers in my possession.
JUDGE JACKsON objected to the witness being allowed to' read any
papers pertaining to this case, unless the papers were proved genuine
and relevant.
The managers asserted the right of the witness to refresh his memory by any private writing or memorandum of his own making.
JUDGE JACKsON- persisted in his objection, and after some explanations
of the point presented by his objection by Senators Richardson, Scott,
Wilson, and Goodlett, the question being, shall the respondent's objection be overruled? the vote stood as follows:
AYES-Messrs. Brown, Byrne, Churchill, Coleman, Frazier, Goodlett, Gullett,
Halliburton, Harris, Hedgpeth, Horner, McFarland, McFerran, McIlvaine, Morris, Newland, O'Neil, Parsons, Peyton, Rains, Richardson, Scott, Thompson,
Vernon, Wilson, Wood, and Wright-27.
NoEs-None.
Absent-Messrs. Fox, Hyer, Johnson, Jones, Robinson, and Watkins.
So the objection was overruled, and the witness having examined the
papers as he desired, proceeded to answer as follows:
A. One of the reasons stricken out was that the jury had been mis led by the remark of the court, and by the testimony tending to show
who was the owner of the land in question. Another, that this testi mony should have been excluded. Another, that the jury were misled
by remarks of the court. I think, in the motion for an arrest of judgment, I urged that the jury had given damages for more than the plaintiff claimed, and that these damages were given on excluded matte. I
remember that I and others were of opinion at the time that the jury
could not have based their excessive verdict on anything but the excluded matter. I did not see how they had reached the amount without taking into account the excluded matter.
Mr. KNOTT. Did you argue these motions before the court with these
causes assigned?
A. I did.
JUDGE JACKSON.  You call it argument, I suppose.
Mr. KNOTT. IHOW did the language or remarks of the court, which
you have mentioned, occur?  In what stage of the trial were you then?
A. The language of the court arose after some conversation between
the counsel and the court about the right of the man, the defendant, to
convey the land. As I said before, I cannot repeat the exact words
used, but he said that he didn't see that he (the defendant) was the
owner of the land, that he had any right to convey it, or something to
that effect.
Q. In your motion for a new trial you say you offered to adduce
affidavits to prove that the verdict of the jury ws founded off this remark?
A. Yes, sir, I did offer to do so. I did not adduce the affidavits, because there was no intimation from the court of a wish or willingness
to hear them.
Q. And this matter was stricken out of the bill of exceptions?
A. Yes, sir, it was.
The hour of twelve having arrived, the Court adjourned till 3 o'clock,
on motion of Senator Rains, by the following vote, the ayes and noes
having been demanded by Senator Morris:
AYEs-Messrs. Brown, Churchill, Frazier, Goodlett, Gullett, Halliburtoln,
Harris, ledgpeth, Mcllvainle, Peyton, Rains, Scott, Thompson, Vernon, Wilson, Wood, and Wright-17.
109 
HIGH COURT OF IMPEACHMENT.
NoEs-Messrs.  Byrne, Coleman, Horner,  McFarland,  McFerran, Morris,
Newland, O'Neil, Parsons, and Richardson-10.
Ab.sent-Messrs. Fox, Hyer, Johnson, Jones, Robinson, and Watkins.
EVENING SESSION.'
It
WEDNESDAY, June  8, 1859.
The Court met pursuant to adjournment.
The managers and respondent attended.
SENATOR RICHARI)SON moved a call of the Senate, when the following
Senators were noted as being absent without leave:
Messrs. Brown, Churchill, Coleman, Fox, Halliburton, Hyer, Johnson,
Jones, McFerran, Parsons, Rains, Robinson, Scott, Thompson, and
Watkins.
Several of the absentees appearing, on motion of Senator Newland,
further proceedings under the call were dispensed with
JOSEPH S. WHITE, a witness on the part of the respondent, appeared,
and was sworn and charged under the rule.
The examination of Mr. M. II. TYRELL on the part of the State was
then resumed.
Mr. KNOTT.  Mr. Tyrell, I will call your attention to the cause of
Daugherty vs. Whitehead, at the trial of which you say you were present,
and get you to state your knowledge in relation to that trial, and the
conduct of Judge Jackson and the parties to it, respectively, while it
was pending.
A. I came into the case but a little time before the examination of
the witnesses was concluded: all the knowledge I have in relation to
the case was acquired after that time. The most I did was to prepare a
bill of exceptions. First, however, I filed a motion for a new trial,
which was overruled. I then filed a motion in arrest, which was also
overruled. Then I tendered a bill of exceptions, which Judge Jackson
declined signing till I struck out some of the grounds for one of the
motions as they appeared in the motion paper. If I remember correctly,
he had no objection to the motion paper in arrest, but objected to the
motion paper for a new trial. When the striking out was done to suit
him, he signed the bill.
Q. Did the bill of exceptions embody the reasons as urged in the
argument of the motion for a new trial?
A. Yes, sir.
Q. You say he refused to sign the bill till several of the reasons urged
were stricken out?
A. Yes, sir.
Q. Mr. Tyrell, there is one other matter that I wish to call your attention to. You were present, I believe, at the last January term of the
Stoddard Circuit Court. Did you hear the charge ot the Judge to the
grand jury at that time?
A. I did hear the charge, or at least I was present part of the time,
and heard part of the charge.
Q. Did you hear anything about a citizen of the county coming to
this city on business for the county, or anything said by the Judge in
relation to such an event?
A. I did. I distinctly heard some remarks in the charge to the effect
that he was informed some person had gone to Jefferson City as a pre
110
I 
HIGH COURT OF IMPEACHMENT.
tended agent for the county; that this person had no right or authority
to pretend to represent the county; and that if the grand jury found
from an investigation that such a thing had been done, and that the
person alluded to had received pay for this, he had received money
under false pretenses, the punishment for which was imprisonment in
the penitentiary.
Q. Did he in any manner designate the particular person alluded to?
A. I don'tthinkhementionedany name in that connection. Whether
he mentioned any circumstances by which the grand jury would be
enabled to say who was meant, I do not now remember. I couldn't say
that he did not, nor that he did.
Q. Were you present at the Circuit Court held in Bloomfield in
August last?
A. I was.
Q. Were you in court when the case of the State vs. Orson Bartlett
was tried or called?
A. I was there.  I was asked by Mr. Bartlett's counsel, I believe, to
take a part in the trial. A jury was empanneled.
Q. Who was acting as Circuit Attorney at that time?
A. David G. Hicks was Circuit Attorney pro tem. After some conver sation between the Circuit Attorney and Mr. Kitchen, counsel for the
defendant, the court stated that it was not necessary to state or argue
such a case to the jury.
Q. What were the circumstances of the case?
A. Bartlett, with others, was indicted for playing cards for something;
I cannot at this moment say what, positively. The Judge said lihe would
not allow the jury to find a generalverdict.  lie went on to say that the
offense set forth in the indictment was not statutory; that it was not the
offense of gambling described in the statutes, or something to that effect; that if the jury were to find a general verdict, he should set it
aside. He said that playing cards under such circumstances was not
gambling, any more than the competition for the rewards or premiums
of agricultural societies and schools was gambling, and that it was not
indictable. He spoke words of this meaning, and illustrated his position
at some length.
Q. Were his remarks in the form of written instructions?
A. They were not. They were orally stated. There were no written
instructions in the case, to my knowledge.
Q. Well, what became of the case?
A. The Circuit Attorney, I think, entered a nonle prosequi, and there it
ended.
Q. Did he give any reason for entering the nolle?
A. I do not remember that he did.
Q. Was this an indictment against Orson Bartlett alone?
A. It was not; according to my recollection, Isaac Brand, David G.
Hicks, Bartlett, and Judge Jackson himself, were all presented in the
same indictment.
Q. What was the demeanor of the Judge while the case was before
the court?  Did he manifest any solicitude about it?
A. I could hardly say, definitely. His language indicated that he was
satisfied that the facts stated in the indictment were not sufficient, or
did not constitute an offense, and he remarked, if I mistake not, that it
was useless to put the county to the expense of trying such cases, or
finding such bills. I thought from his whole manner, that he seemed
to think that there was something personal to himself in the finding of
the bill. He disclaimed any personal interest, or, rather, said that if his
own name was not mentioned in the same indictment, hle would quash it.
ill 
HIGH COURT OF IMPEACHMENT.
CROSS-EXAMINATION BY JUDGE JACKSON.
Q. Air. Tyrell, how long have you resided in this State?
A. I came to Missouri in the latter part of November, 1857, and have
resided here ever since, except a short absence in Illinois last summer.
Q. Did you not leave the State once?
A. I left as I just stated; but I did not move out of the State. My
family was here.
Q. Did you not announce your intention to leave?
A. I think perhaps I did.
Q. Didn't you leave when you announced your intention of going?
A. I did not.
Q. Where did you see me first?
A. I think, Judge, that I first met you at Ripley Circuit Court, in the
spring of'58. 1 have no recollection of seeing you before that time.
Q. Didn't you come to that part of the State first?
A. That was the first court I attended.
Q.  low many courts in the Fifteenth Circuit have you attended?
A. One in Ripley, two in Butler, two regular and one special term in
Stoddard, and one in Wayne.
Q. Have you ever been round the circuit?
A. Only in the counties I have mentioned.
Q. What was the first case you ever saw me try?
A. I do not recollect.
Q. Were you an attorney in the Kinsey case at Ripley Circuit Court?
A. I was in the case, but not as an attorney. I had no license to practice at that court; no license to practice in this State, I mean.
Q. When did you get license?
A. Got it sometime in the month of May, 1858.  It is dated May 8,
1858, I believe.
Q. When was the court in Ripley county held?
A. I do not remember; I could easily ascertain.
Q. Wasn't it the last Monday in April?
A  I could easily ascertain, so as to speak positively.  I would not undertake to do so now.
Q. Who were Mr. Kinsey's lawyers in the case you have been talking
about?
A. I think they were Mr. Fox, Mr. Kitchen, and Mr. Phelan.
Q. Haven't you given testimony in relation to this matter before?
A. I have.
Q. Didn't you swear then that you were an attorney in the case?
[Mr. Hardin objected to the question.  The objection was discussed,
and finally withdrawn by Judge Jackson, to be stated differently.]
Q. I will ask you to look over that paper, (showing manuscript to witness,) and see if you made that statement.
A. I will not say positively.  I may have made it as iis, and I may
have made it with the addition of a single little word, which would materially change the meaning of the paragraph.
[Question repeated here several times in slightly modified form, elicit ing the same reply substantially.]
Q. Well, what had you to do with the Kinsey case?
A. I had nothing much to do with it. I expressed opinions on the
points rendered, and perhaps did some writing; but I did not appear in
court as an attorney for Kinsey, simply because I did not have license
at that time.
Q. I understood you to say that I had told the witnesses in that case
to go on, and had refused to let the counsel take down the testimony as
112 
HIGH COURT OF IMPEACHMENT.
the examination progressed. Now didn't you hear this in a conversation
with the witnesses afterwards?
A. I don't so remember the fact.
Q. Wasn't it that I told them they might have any reasonable time to
take down a single statement of the witness, as soon as the statement
was completed?
A. I didn't remember it as you say. To the best of my recollection
the facts occurred as I related them before.
[Question repeated, with same answer.]
Q. I think you used the term squabbling in regard to some difficulties
with the lawyers in this case. Will you tell us what you mean by that?
A. I referred to the harsh expressions used by you.
Q. Couldn't you give us an example of one of those harsh expressions?
A. I couldn't undertake to do it, sir. I might if I remembered them
particularly enough, but I do not.
Q. Well, I want to know what you mean by harsh expressions?
A. I couldn't undertake to repeat exactly what you said.
Q. Perhaps you could if you had any disposition to do so; come, now,
give us an example; couldn't you let off a blank shot or two by way of
example? No one will take any offense of course, knowing the purpose
for which it is done.
A. I am not skilled in such practice.
Q. Well, did Mr. Fox use any sharp expressions?
A. I think both of you did.
Q. Can you tell us any of Mr. Fox's sharp expressions?
A. I don't remember them.
Q. Are you certain that what I said was sharp?
A. I am well assured that it was.
Q. Well, do you think there were any blunt expressions used? Were
those you speak of sharp at the point-were they two-edged?  Have you
ever seen a triangular expression?
A. I will answer that question if required to do so.
Q. Well, tell us if my expressions were improper?
A. Some of them were very improper, in my judgment.
Q. Well, what were they?
A. I have answered that.
Q. What did I say to Mr. Fox?
A. I do not remember the expression used. I think you stopped him
once or twice-two or three times-while he was speaking.
Q. I believe you said that he was in the regular discharge of his duties. Wasn't I, also?
A. I think I said "arguing   his cause," instead of regular discharge of
duties.
Q. Well, wasn't I in the discharge of my duties as Judge?
A. Sometimes you were-at other times. in my judgment, yo- were
not.  I don't know about the matter.  I could only give you my opinion.
Q. Do you think that I thought I was not in the discharge of my
duty?
A. I couldn't give an opinion as to what you thought.
Q. Why do you say that my conduct was improper?
A. In saying so, I only gave my opinion.
Q. Well, Mr. Tyrell, about this celebrated mandamus case.  I believe
you said you were not present all the time. At what stage of the case
did you come in?
A. I was present when Mr. Eaker was brought into court.
Q. How was he brought in?  What was the stage of the case then?
A. I do not know of my own knowledge whether he was brought in
8 
H lIGH COURT OF IMPEACHMENT.
by an attachment, or how. I learned that, or rather inferred it, from
the conversation which took place when he came in.
Q. Now, wasn't it that Mr. Kitchen and Mr. Phelan were both trying
to prevent an attachment from being issued, and wasn't this talk that
you heard before the attachment was issued?
A. I can't say when the attachment issued.
Q. Wasn't all the matter about issuing an attachment?
A. I have stated the facts according to my best recollection and knowledge.
Q. Didn't they assert that there had been no service of the writ, and
that there was no case in court?
A. I think so.
Q  Well, didn't.I then ask them if they appeared as attorneys?
A. You did ask them if they appeared in that capacity. They said
they did not; that they would not appear as attorneys.
Q. Well, didn't one of them, or both, say he appeared as the next
friend of the court?
A. I think Mr. Kitchen used some expression like that.
Q Did you ever hear of an attorney appearing as next friend of the
court before?
A. I can't say that I ever heard of such a proceeding before.
Q. Well, wasn't it after this that the attachment was issued?
A. I decline swearing upon facts not within my own knowledge. All
that I know is that Mr. Eaker was brought into court, and when his
attorneys attempted to speak, you said if he was not in court, or not
served, you would not hear an argument. I remember distinctly your
saying that it was not a proper cause for argument.
Q. Well, did I refuse to hear counsel after there was a case in court?
A. I don't know.  I only know that Mr. Eaker was brought in by the
officer before this conversation that I have related.
Q. Was there any disposition on my part, before this difficulty about
the argument, to oppress anybody?
A. I saw nothing in the beginning of the matter that I thought any
one could object to, on your part.
Q. Did you say you were at the town of Greenville,  in court,
when the change of venue in the case of Limbarger vs. Powers was
awarded?
A. I was there at that time.
Q. Were you present when the matter was under discussion?
A. I was. I)o not know that I was there all the time, but think
I was.
Q. Well, wasn't Mr. Fox trying to have the case sent to a particular
county, and wouldn't it have been wrong to have sent it just where he
wanted it?
A. I cannot answer.
Q. Well, what is your opinion in regard to changes ofrenue? What
ought to be the rule in regard to awarding them?
[Question objected to and withdrawn.]
Q. How far is the county seat of Madison from Greenville?
A. I could not give the precise distance. It is called forty or forty  five miles, I believe.
Q. How far to the county seat of Mississippi?
A. I cannot speak more positively about that; I believe it is con  siderably over one hundred miles.
Q. You don't know the distance from Greenville to Charleston?
A. No.
Q  Isn't the way to go there by Nigger Wool?
114 
HIGH COURT OF IMPEACHMENT.                     11
A. I never traveled from Greenville to Charleston.  I never was at
Charleston. All I know about it is from common inquiries.
Q. Well, what have you always heard to be the route?
[The witness here described the route, during which he was so fre   quently interrupted by Judge Jackson that the reporter's account is not
intelligible.]
Q. You say the attorneys requested the case to be sent to one of two
adjoining counties: did the attorneys on both sides do this?
A. That is my impression.
Q  Where does Mr. Fox reside?
A. I think in Madison county.
Q. What other lawyers were in the case?
A. Mr. Pipkin was the other. There may have been others. I do,
not recollect.
Q. Where does Mr. Pipkin reside?
A. I believe he lives in Iron county.
Q. Which do you think would have been the proper county to have
sent the case to?
[Question objected to, debated at some length, and finally withdrawn.]
Q. Do you know whether business had accumulated so that it was
almost impossible to get a case tried?
A. I do not know; I have heard something of the kind.
Q. Would it be proper to send a case there under such circum  stances?
A. Perhaps it would.
Q. Were not Mr. Bedford and Mr. White employed in this case?
A. I am not certain.  I think one, Mr. Bedford, and perhaps both
were?
Q. Were not Mr. Fox and Mr. Pipkin both on the same side of the
case?
A. I believe not, though I may be mistaken.
Q. Is not there business relations between the counsel named and
counsel in Mississippi county?
A.  Perhaps there is; I wouldn't undertake to say.  I believe Mr.
Bedford and Mir. White used to live in Mississippi county.
Q. Hasn't Mri. Bedford a brother living in Mississippi county, who is
a lawyer?
A. I have so understood.
Q. How far is it from Pemiscot county to Dunklin county?
A. I think they are adjoining counties.
Q. How far from the county seat of one to that of the other?
A. I am unable to tell you. Think it is called sixty miles from
Bloomfield to Kennett, the county seat of Dunklin, and Pemiscot is
beyond, adjoining Dunklin.
Q. Is there not a plank road or roads leading from Kennett to,Pemiscot county?
A. I have heard that there was; I don't know anything about it.
Q. Well, which would be the most convenient to travel to attend a
case, one hundred miles or forty miles; or is the distance the only thing
to be considered?
A. Under some circumstances it might be more convenient to go one
hundred miles than to go forty in another direction
Q. Well, did you see anything improper in my conduct in sending
cases from Dunklin to Pemiscot?
A. At the time, and with my knowledge of the facts, I thought it was
very improper.
Q~ Well, when would it be proper to send a case to a court one hundred miles distant rather than to one forty miles distant?
1115 
HIGH COURT OF IMPEACHMENT.
A. I could only tell from a full knowledge of the facts.
Q. I thought so, and if I thought I knew best, and sent a case to Mississippi county, I reckon there would be no great harm in it. And now,
if the parties, if both sides, were agreed to take the case to a particular
county, instead of the one it was sent to, what harm would be done?
Couldn't they, by consent, withdraw the application and take it where
they pleased?
[Mr. Knott protested against this manner of arguing the case with
the witness. Judge Jackson defended his course for a time, and then
proceeded with the cross-examination.]
Q. Well, Mr. Tyrell, we will go to this Griffie and Berry case. Can
you tell me who was the plaintiff's attorney in that case?
A. I think it was Mr. Bedford. I am sure it was.
Q. Who was on the other side?
A. I have forgotten one of the defendant's attorneys. Mr. Griffie
employed me.
Q. Was there a jury in the case?
A. Yes, sir.
Q. Were you in the case at the commencement?
A. I think I was.
Q. What was the action about?
A. I think it was brought to recover damages, and there was an allegation of the failure of a conveyance. There was something in it about
a horse.
Q. Did the petition claim anything in relation to a conveyance?
A. I am not certain that it did. But the matter or controversy about
the conveyance was the principal question at issue on the trial.
Q. Now, Mr. Tyrell, wasn't it all about an improvement?
A. Yes, sir, I believe it did in the end turn out to be an improvement
matter.
Q. Was there any instructions asked or given in the case?
A. I am not certain. I do not remember any written instructions.
Q. Isn't it admissible, under the statutes, for a Judge to give instructions to a jury?
A. It is hardly necessary for me to answer that.
Q. What were the causes assigned in your motion for a new trial i n
this case?
A. I do not remember all of them. Most of them were directed by
you to be struck out.
Q. Well, what reason did I give for doing so?
A. I do not remember that you gave any.
Q. Wasn't it that I objected to your motion, showing that I had itn structed the jury when I had not? Didn't it go on to say that the Judge
had misinstructed the jury, and didn't I tell you that I had not instructed
the jury at all?
A. I don't think any such word was used in the motio  paper.
Q. Didn't I tell you that if I had instructed the jury, you must in corporate the instruction in your bill of exceptions?
A. I think the expression misinstructed was not in the motion papers
at all. I think misdirected was the word used in that connection.
Q. Well, what did that refer to?
A. To your words to the effect that the defendant had no interest in
the land which he could convey.
Q. Well, what else was there that you say I made you strike out?
A. An allegation that the jury had been misled by testimony going
to show that the defendant was not the owner of the land.
Q. And you say I overruled your motion for a new trial?
A. Yes, sir, you did; and the motion in arrest also.
116 
HIGH COURT OF IMPEACELDENT.
Q. Now, wasn't it that you wanted your way as an attorney, and I
thought my way was right, and you couldn't get your way about it,  wasn't that what was the matter?
A. I cannot testify as to your thoughts.
Q, Whose duty was it to decide when there was a difference be  tween us?
[Mr. Knott objected to this style of examination, and after some dis cussion the Judge continued.]
Q. Did you say I refused to sign the testimony in this case because
there was so much noise I couldn't hear it?
A. You did give that as your reason for refusing to sign it.
Q  During the trial, didn't I ask vMr. Bedford to remove his seat, be cause I couldn't hear what was going on?
A. I think you did.
Q. Well, was there much noise?
A. During a portion of the testimony there was too much noise.
MIr. KNorrTT. Whose duty was it to keep order?
A. It was not mine. I was not the court.
JUDGE JACKSO..  I'll ask you, Mr. Tyrell, if you have ever seen me
exercise arbitrary power-if you have seen me oppress-that is, I
mean, that I have exercised power that I didn't think I possessed or
should exercise?
A. I have never seen you act arbitrarily in that sense.
Q. Did you ever know me to fine an attorney?
A. I never did.
Q. Did you ever know me to send one to jail?
A. No.  I have heard of your ordering an attorney to be taken to
jail, and I have heard of your fining attorneys; but I don't know of any
cases.
Q. How often have you heard of my fining attorneys?
A. I don't know.
Q. Have you heard that such things were of frequent occurrence?
A. They have not been of frequent occurrence within the past year
or so. There are frequent disturbances in court between you and the
lawyers, but I cannot say that you often take that course with them.
Q. Couldn't you give an instance?
A. The case that occurred in Ripley court, the Kinsey case, I suppose would do for one.
Q. In this case of Bartlett, I believe, you say that Bartlett was tried
for gaming?
A. I did not say there was a trial. He was indicted, and a jury was
sworn-I can't say whether any evidence was submitted to the jury.
After your statements in regard to the law of the case, a nolle was entered by the Circuit Attorney.
Q. Did you state the substance of what I said then about theaw?
A. To the best of my ability I did.
Q. Wasn't what I said more to the lawyers than to the jury? Didn't
I address myself to the lawyers?
A. I cannot say for whose ears you intended your remarks. They
were in open court, and in the hearing of the jury.
Q. Didn't I say that betting, and not playing for property, oysters, or
anything of that kind, was the offense known to our statutes; that the
statutes punished betting, and not such things; and were not the illustrations I used going to show that playing cards where there was no bet
was not indictable?
A. I stated before the full extent of my recollection about it. I have
heard you speak of the point out of court, and you may have discussed
it this time in the way you represent: I cannot say.
117 
HIGH COURT OF IMPEACHMENT.
Q. Did you ever hear me say that betting was not indictable?
A. I never heard you say that betting was not indictable in this State.
[Mr. Knott here objected that the Judge's construction of the law
was not a matter relevant to the issue, and a discursive dlebate sprung
up which continued some time. The Judge returned to the examine
tion of the witness, saying that he had been "butted off the track" by
the gentleman.]
Q. In speaking of this case, wasn't I talking more to the Circuit Attorney, to yourself and the other lawyers, than to the jury?
A. I cannot say, I am sure.
Q. Were you not employed in the case?
A. I had been spoken to, but I had nothing more to do than to listen,
and give my opinion occasionally.
Q. Is that the way you do business for your clients?
A. Not usually.
Q. Well, MIr. Tyrell, we will go back to those habeas corpus cases. Do
you recollect where you presented the petition in the first case?
A. It was at your own house.
Q. When was the writ issued?
A. It was issued that evening.
Q. Do you recollect what time that was?  Wasn't it some time early
in January?
A. I think it was. I think it must have been near the ninth of Jan uary. I saw you in the street, and had some talk to you about the case.
Q. At what time was the other case presented?
A. Believe they were both presented together.  Some of the causes
alleged in both petitions were the same.
Q. Didn't I tell you the causes alleged were not sufficient?
A. I believe you did, and I think I made an alteration or two at your
suggestion.
Q. When Mr. Cryts made his return to the writ, didn't I tell him the
prisoner was discharged?
A. I believe you did tell him that the prisoner was or would be dis charged.
Q. When did I write the discharge?  Didn't I write the discharge in
both cases at the same time?
A. I cannot say positively; my attention was not particularly given
to that matter; but it may have been so.
Q. When was it that the papers were brought in by the Constable?
Was it before or after the discharge?
A. I believe the papers came in before the discharge of the prisoner.
Q. Did you say that you had told me the character of the examina tion taken before the Justice?
A. I do not remember saying so.
Q. Well, what was your opinion about the making of that order?
[Objected to and withdrawn.] 
Q. Do you say that the facts were told to me by Mr. Cryts?
A. Yes, sir. He had a conversation with you before or at the time he
made his return, and I think that he then related them. He did not
have much to say about it. however.  There was something wrong about
his return, and he amended it once or twice.
Q. In what particular did he amend it?
A. I don't remember.
[Witness proceeded here to relate the facts, his statement not differing
materially from that given upon the examination in chief.]
Q. Is it customary to take the testimony of by-standers in relation to
such cases, instead of the record?
Objected to and withdrawn.]
118 
HIGH COURT OF IMPEACHMENT.
Q. Do you think I had any corrupt motive in discharging the
prisoner?
[Objected to and withdrawn.]
Q. What was the ground of the discharge?
A. I do not remember the ground stated in the order.
Q. Well, had the Constable Cryts any authority for holding the pri soner in custody?
A. I can only give an opinion. I believe when the mittimus and
other papers were in his hands, and my belief was at the time when I
saw them, that he had authority to hold the prisoner.
Q. Do you say that the papers brought in by the Constable were the
identical papers in the cause?
A. The only thing I know about that is, that the papers were claimed
by Cryts to be the papers in the cause. He brought them into the of fice and said there was the papers.
Q. Well, how about the other case?
A. The case of John R. Maine?
Q. Yes. What authority had the officer to hold him in custody?
A. Well, he had a mittimus.
Q. How do you know it was a mittimus?
A. I know it purported to be one. It was directed to the Jailer, and
commanded him to keep the body of Russell. It was the usual warrant
of commitment.
Q. Would any person's writing a paper of that kind make it a mittimus?
A. Of course not.
Q. Well, what was in this paper?
A. There was statement that the man, John R. Maine, had been
brought before the magistrate charged with larceny. It then directed
the officer to keep him-to commit him to jail.
Q. Did that mittimus state that there had been an examination as to
the probable guilt or innocence of the accused?
A. It is my impression that it did not, and I believe that was one of
the reasons I urged for the discharge. You said that if it had only gone
so far as to st ate that sufficient evidence to believe an offense had been
committed was adduced, it would have been good.
Q. Mr. Tyrell, what is the state of your feelings towards myself?
A. At present I have no particular admiration or respect for you. A
few months ago I did respect you very much.
Q. What has produced the change?
A. Your conduct towards me.
Q. In what respect?
A. One cause that I can name now is, that you stated that on my examination before the Judiciary Committee of the House, last winter, I
had committed perjury. You told me so, and others have informed me
that you made the statement.
Q. Did I not tell you that I did not know whether you had been
sworn to, or had stated certain things, or not, but that if you had stated
certain things that I understood you had stated, you were falsifying?
Didn't I ask you whether you had sworn to those things?
A. I believe you did.
Q. Were you sworn here?
A. I was.
Q. Did not you and myself go to St. Louis on the same train together,
and were we not perfectly friendly at that time?
A. Yes, sir.
Q. Did you not then tell me that I need not expect justice at the
hands of the committee?
119 
HIGH COURT OF IMPEACHMENT.
A. I don't remember, but think I did not; though I had serious
doubts on the subject at the time.
Q. Where was your home then?
A. Bloomfield.
Q. Hadn't you changed your residence before you came up here?
Were you not living in Jackson, then?
A. My wife was there, temporarily.
Q, Didn't you make a contract for board there with that understanding?
A. I made a contract for board, but not with any such understanding.
Q. Didn't you make an affidavit that you had traveled a good many
miles, and didn't you draw more mileage than you were entitled to?
A. I drew mileage, but do not know that I made any claim for it, or
made any affidavit.
Q. Haven't you said repeatedly that these proceedings against me
were hellish, were devilish, and so on?
[Objected to and withdrawn.]
Q. When you told me about the committee, didn't you tell me there
were too many who wanted to wear the ermine, and that that was what
was the matter?
The managers objected to this question on the ground that it was
irrelevant; and arguing that if the question were asked for the purpose
of laying a foundation to contradict the witness, it was improper for the
reason that a witness could not be examined for the purpose of contradiction on an immaterial point. Thereupon a confused and colloquial
debate sprung up, a report of which would not be intelligible. The
question was finally reduced to writing by Judge Jackson, as follows:
Did you not, at the time you told me in Jefferson City that I need not even expect justice from that committee, state that there were too many who wanted to
wear the ermine, and that was what was the matter?
The question before the Court being, shall the respondent be permitted to ask the question? it was decided in the negative by the following vote:
AYrs-Messrs. Goodlett, Gullett, Harris, Hedgpeth, McFarland, Morris, Newland, Peyton, Scott, Wilson, and Wood-11.
NoEs-Messrs. Brown, Byrne, Churchill, Coleman, Frazier, Halliburton, Horner, McFerran, McIlvaine, O'Neil, Parsons, Rains, Richardson, Thompson,
Vernon, and Wright-16.
Absent-Messrs. Hyer, Johnson, Jones, Robinson, and Watkins.
Excused from voting-Mr. Fox.
The cross-examination then proceeded.
Q. Haven't you been very active in spreading rumors about me, since
the commencement of these proceedings?
A. Never.
Q. Were you not the author of an article in the, signed
"Plus?"
[A long debate ensued about whether the witness should be allowed
to answer the question. It was finally decided that he might do so.
The witness stated that he could not tell who was the author of the
piece (which was shown to him,) and after a long debate as to whether
he should be compelled to give a more definite answer, the Senate
adjourned.
120 
HIGH COURT OF IMPEACHMENT.
FOURTH DAY.
THURSDAY, June 9,1859.
The Court met pursuant to adjournment, and was opened by proclamation.
The managers and respondent attended.
On motion of SENATOR MCILVAINE, leave of absence was granted to Senator O'Neil.
DAVID M. Fox, a witness on the part of the State, against whom an attachment had issued, was sworn as a witness, and charged under the rule
by the President of the Senate; and on motion of SENATOR SCOTT, was excused from any further proceedings against him in pursuance of the
attachment, all the Senators present voting in the affirmative.
Absent-Messrs. Hyer, Johnson, Jones, and Watkins.
Sick-Mr. Vernon.
The cross-examination of Mr. MI. HI. TYRELL was resumed.
[The question, an answer to which Judge Jackson was urging at the
adjournment yesterday, was waived.]
Q. Where did you say you reside?
A. I reside at Bloomfield, Stoddard county. I call that my home, at
least. My family has been boarding at Jackson latterly. I have been
at home very little during the last two months.
Q. Where have you been during that time?
A. In Butler county.
Q. What have you been doing there?
A. Laying out a road.
Q. Haven't you represented yourself as an engineer?
[Question objected to and passed without answer.]
Q. Mr. Tyrell, you have answered as to your own feeling and opinion
about me; now tell us what is the opinion of the people of Stoddard
county with regard to me, as a Judge?
[Question objected to, and then put in a different form. An objection
being still urged, it was waived.]
Q. Did you ever hear me accuse Mr. Fox of perjury, of subornation of
perjury, or of lying, on the bench?
A. I cannot say that I ever did.
Q. Is that my general conduct towards lawyers?
This question was objected to by the managers, reduced to writing,
(as below given,) and decided proper by the following vote:
AYEs-Messrs. Churchill, Coleman, Goodlett, Gullett, Harris, HIedgeth, McFerran, McIlvaine, Morris, Newland, Parsons, Peyton, Rains, Richardson,
Robinson, Scott, Thompson, Wilson, Wood, and Wright-20.
Noes-Messrs. Brown, Byrne, Fox, Frazier, Halliburton, Horner, and McFarland-7.
Absent-Messrs. Hyer, Johnson, Jones, and Watkins.
Absent on leave-Mr. O'Neil.
Sick-Mr. Vernon.
Q. As far as your observation extends, has my conduct as Judge,
towards lawyers and parties litigant, been habitually oppressive, contumelious, insolent, and insulting?
A. To some lawyers and some litigants your conduct and language
have been as described.
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Q. Couldn't you give an instance?
A. I think on some occasions your conduct towards Mr. Kitchen, Mr.
Phelan, and Mr. Fox, has been of this character.
Q. How many times have you ever been present in courts with Mr.
Fox?
A. I don't know the number of times. Not very often. Perhaps not
more than three.
Q. Well, now in regard to Mr. Phelan; how many times have I treated
him in that way?
A. I couldn't tell.
Q. In what cases was it?
A. I couldn't give the particular cases, either.
Q. Well, prior to my treating Mr. Fox, and Phelan, and Kitchen this
way, was there not an understanding that these men would hold a
meeting against me at Butler Circuit Court?
[Objected to and question not answered.]
Q. At the April term, was there not some kind of plan gotten up to
hold a meeting of the bar at Butler court?
[Objected to, debated some time, and withdrawn.]
Q. You stated that some lawyers and some litigants had been treated
in that bad manner by me. Now I want you to give an instance of
some parties.
A. I believe I have already remarked that it occurred in two instances. The case of Griffie and Whitehead would perhaps do for one.
Q. Well, what was it that I did then?
A. I don't remember exactly what.
Q. Well, did my bad conduct consist in my decisions or my words?
A. Sometimes in both.
Q. What was it that was oppressive?
A. I will not undertake to detail.
Q. What was it that was contumelious, insolent, and insulting?
A. I said that to some lawyers and to some litigants your conduct
had some of those characteristics.
Q. Well, what was the contumelious matter?
A. I gave yesterday your expression in regard to Mr.  Fox.  I think
perhaps that would do for an instance.
Q. What did I say to him?
A. You told him to sit down, in a harsh manner.
Q. Well, what made my conduct towards Griffith and Whitesides
bad? What was the matter there? Was it anything I said to them, or
was my ruling oppressive?
A. The effect of your ruling was oppressive, in my judgment.
Q. Did you ever hear me address any party out of the way?
A. Think I have, sir, repeatedly. I have heard it in nearly every
court-house that you have held court in while I was present.
Q. Did you ever hear anything of the kind in Ripley cosrt?
A. Yes, sir.
Q. Well, what was it you heard?
A. I can't now undertake to give names or precise expressions. I
might, perhaps, by a little investigation.
Q. Did I ever do it in Wayne court?
A. Yes, sir.
Q. In Stoddard?
A. Yes, sir.
Q. In Dunklin?
A. In all your courts that I have attended.
Q. And after hearing all these things at all these places, you can't
now give a single instance?
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HIGH COURT OF IMPEACHMENT.
A. Not at present-not here, I would have to refresh my memory by
a reference to papers.
Q. Well, now, Mr. Tyrell, haven't you said, at various times and to
various persons, that all you had against me as a Judge was, that I
ought to have sent Mr. Phelan and Mr. Kitchen, and others, perhaps,
to jail, or words with that meaning?
A. I think I never said that I approved your course as Judge.
Q. That is not answering my question. If you ever said anything
about me as a Judge, let us hear it.
A. Perhaps by limiting your question- you would be able to get a
definite reply.
The managers objected to this question as irrelevant, and as opening
a door for collateral issues. The respondent reduced his question to
writing, (as given below,) and it was decided proper by the following vote:
AYEs-Messrs. Goodlett, Gullett, Harris, Hedgpeth, Morris, Newlard, Parsons, Peyton, Rains, Richardson, Robinson, Scott, Wilson, and Wood-14.
NoES-Messrs. Brown, Byrne, Churchill, Coleman, Fox, Frazier, Halliburton, McFarland, McFerran, McIlvaine, and Wright-13.
Absent-Messrs. Hyer, Johnson, Jones, and Watkins.
Absent on leave —Mr. O'Neil.
Sick-Mr. Vernon.
Q. Have you not, in the presence of David G. Hicks, in the county of
Stoddard, since you gave your testimony before the Committee of the
Judiciary last winter, in this case, stated that you mostly approved my
course as Judge; that had you been in my place you would have sent
some of the attorneys to jail?
A. I am unable to say. Perhaps I did,-perhaps I did not. Had a
good many conversations with several persons on the subject, and perhaps I used that language, though I don't recollect it, while I am not
sure that I did not. A part of that was often in my mind, and I was
convinced
Q. Was it the part relating to the jail?
[Not answered.]
Q. Now, Mr. Tyrell, I want to ask you one question in regard to your
getting license to practice.  When did you say your license was dated?
A. On the 8th of May.
Q. Didn't you get it in Butler county?
A. The license was issued in Stoddard county. The Clerk of the
Stoddard court's certificate to the affidavit on the license is on it.
Q. But mightn't that have been put there at a different time. Mightn't
the license have been given you in Butler, and the affidavit made afterwards?
A. The jurat and the license have the same date.
Q. Well, it don't matter. Do you recollect a conversation that you
and I had about my not giving you license at Doniphan?
[Objected to and question waived.]
RE-EXAMINED BY MR. KNOTT.
Q. I understood you to say, Mr. Tyrell, that in one of the habeas
corpus cases, about which you testified, the Judge suggested an alteration of your petition, in reference to some of the causes assigned for the
application for the writ of habeas corpus. Did you alter it then?
A. Yes, sir, I think I made the alteration pursuant to his suggestion.
I endeavored, by an interlineation, I think, at least, to make the petition conform to his opinion in regard to the law.
123 
HIGH COURT OF IMPEACHMENT.
JUDGE JACKSON. Wait a moment about that. Wasn't the petitions
both alike?
A. I think some of the same causes were alleged in both.
Q. Is that it? (showing witness a paper.)
Mr. KNOTT. Let me see it, Mr. Tyrell, before you answer.
JUDGE JACKSON.  No, that is not it.  It is not offered in evidence.  Mr.
Tyrell, didn't you consider those petitions sufficient?
Mr. KNOTT. That is a matter of law, and you needn't give your
opinion.
JUDGE JACKSON. Well, didn't you, Mr. Tyrell, present those petitions
in good faith?
A. Of course I did.
Mr. KNOTT. Please state the words interlined by you at the suggestion of the Judge, by refreshing your memory from any memorandum
that you may have.
A. To the best of my recollection they were these words: "That the
said warrant of commitment is insufficient and defective;" "that said
magistrate has not certified an examination of the accused," and "that
there is no testimony to warrant the commitment." I can't say that the
Judge suggested those very words, but they were inserted in pursuance
to his suggestion.
Mr. HARDIN. Were the interlineations made before the petition was
signed?  Were they sworn to with the balance?
A. I don't remember.
The examination of Mr. Tyrell here closed.
TESTIMONY OF JONAS EAKER.
JONAS EAKER called for the State and examined by Mr. Hardin.
Q. Where do you reside?
A. I reside near Bloomfield, in Stoddard county, Missouri.
Q. What is your occupation?
A. I am a farmer.
Q. What offices in that county have you held or do you now hold?
A. Judge, or one of the Judges, of the County Court, and Justice of
the Peace.
Q. Were you a Judge of the County Court in May, 1858?
A. I was.
Q. Well, Mr. Eaker, Judge Jackson is charged here with issuing an
attachment against you for a criminal contempt, at the spring term of
the Circuit Court in Stoddard county, because you did not make a return to a writ of mandamus issued from his court. I will get you to
state the facts, what occurred between you and the Judge, and all you
may know about the matter, as nearly as you can recollect?
A. Well, I'll tell all about the business as near as I remember. Sometime prior to the May term of the Circuit Court, the Depty Sheriff, J.
J. Jackson, told me he had a mandamus for me, and presented a copy
of it, or something purporting to be a copy, and I knew it to be a copy
from the handwriting of the Sheriff, or Deputy Sheriff, rather. I didn't
consider it a service, and let the matter run on, and didn't appear in
court to answer. I had spoken to Mr. Kitchen and Mr. Phelan about
it, and when the case came up, they moved to quash the return or the
writ, or something of that kind, bu, the Judge told them to hush up,
or to take theirseats, or something to that amount; I couldn't pretend to
give his exact words; and he ordered the Clerk to issue an attachment
for me. The Clerk issued one. I was sitting near by at the time, and
it was served on me by the officer in the room where the court was held.
When I heard what they were doing, I got up from where I was sitting
124 
HIGH COURT OF IMPEACHMENT.
and went back and took a position on a work bench that was there.
After I was arrested, I was held in custody about an hour by the prin cipal Sheriff. When the case was called up again, I went in, and the
Judge told me I was in contempt.  I told him I was not, because I
hadn't been served. It was talked about some; the Judge said if I was
not in contempt I didn't know my duty. I told him I thought I did.
After that he said he would release me if I would answer under the
copy. I took it out and answered, and brought it in to the Judge, and
he dismissed the case at the prisoner's cost.
Q. Did you say Mr. Kitchen and Mr. Phelan were your attorneys in
the case?
A. Yes, sir, I spoke to them as attorneys to attend to it for me.
Q. Well, did they attend to it for you?
A. They tried to, but the Judge required them to shut their
mouths and sit down, and wouldn't allow them to speak about the
matter.
Q. You say, then, that they made an effort to speak to the court in
your behalf?
A. Yes, sir, they did.
Q. When the Judge told them to shut their mouths and sit down,
what did they do?
A. Well, Mr. Kitchen rather contended that he had a right to speak
for his client; he said he was a lawyer, or a member of the bar, and
had a right to be heard.
Q. Mr. Eaker, I will call your attention to another master. Were
you present at the August term of the court?
A. I was in and about there.
Q. Were you in court during the trial of Orson Bartlett?
A. Yes, sir. I was present during the trial of Col. Bartlett.
Q. You will please commence and go through with what occurred
then-what you noticed of the way that case turned out, and what you
heard the Judge say.
A. Well, in the first place, I think Col. Bartlett, and David G. Hicks,
and Isaac Brand, and the Judge himself were all returned in the same
indictment for playing cards, or for gaming. I am not certain how it
was, but I think they had a jury, and a witness or two was brought in
to testify in the case. While the matter was up the Judge undertook
to define the law on the case. If I understood it right, the charge was
for playing cards for a watermelon worth ten cents; it was something
like that I know. The Judge told the jury to take the case and find
the facts, and he would apply the law. Just about that time some one
tapped me or beckoned me that he wanted to see me, and I went out;
and that is all I know about it of my own knowledge.
Q. Have you seen the articles of impeachment in this case?
A. I don't know; I believe I have. I think some one read them
to me.                                                      -
Q. Do you know anything about any other charges than the ones you
have spoken of?
A. Well, you mean the charges here to be tried? I do not know that
I do.
Q. Do you know  anything about Judge  Jackson's going before
the grand jury of Stoddard county and giving them some instructions?
A. Not of my own knowledge.
Q. Did you hear the charge of the Judge to the grand jury at this
term of the court?
A. I wasn't present
125 
HIGH COURT OF IMPEACHMENT.
CROSS-EXAMINED BY JUDGE JACKSON.
Q. Mr. Eaker, wasn't it this way about that mandamus matter: on the
application for the mandanus didn't we have a conversation about the
matter, and wasn't it then you told me about the service?
A. I don't know, Judge. I believe I was talking to you and told you
I expected there would be an application made, some weeks before court.
Q. Now wasn't it in this conversation I said some of the things you
say I said about it?
A. I don't know.  I have told the circumstances according to my
best recollection.
Q. Well, at the time you say I told them to take their seats and shut
their mouths, now who was that language addressed to?
A. It was first, or you talked first in that style, to Mr. Kitchen.
Q. Well, what did Mr. Kitchen say?  Didn't he say he was not an
attorney in the case?
A. I don't recollect. When you said it was not a case for an attorney,
I think may be he did.
Q. Didn't I tell them I wouldn't hear them because there was no
case in court!
A. I believe I recollect that you said it was not a case in court for argument.
Q. You say you were in the court-house when I was talking to Mr.
Kitchen and Mr. Phelan?
A. Yes, sir.
Q. Well, didn't I then tell you, or didn't I ask you if you were ready
to make a return, and wasn't that before the attachment was issued?
A. All the conversation I had with you about it in the court-house
was when I was brought in under the attachment.                    t
Q. Did'nt I tell you I couldn't do anything in the case till you made
a return; that you could make your return, and if the writ hadn't been
served, I intimated my willingness to dismiss the proceeding?
A. Yes, you did say something like that after I was brought in under
the attachment.
Q. At the time the Sheriff served the writ upon you, or copy you call
it, do you know whether you saw the original? Did you ever see the
original?
A. I think, perhaps, I did see the original at some time, though I
couldn't now say it was then.
Q. Did you see the copy?
A. I did, sir.
Q. How did you know it was a copy if you didn't see the original?
A. I knew it wasn't the original from the hand-writing. I was tolerably familiar with your hand-writing.
Q. How did you know it was a mandamus?
A. I knew it from the reading, and I saw it was in the Hand-writing
of somebody else.
Q. And you knew it was a copy, because it wasn't in my hand-writing?
Now couldn't there be an original mandamus, without my writing it
out myself?  In your opinion does the law require the Judge to write a
writ of mandamus himself?
[Mr. Knott objected to the witness giving an opinion upon a matter
of law.]
A. I knew well enough that you, Judge, was not in the habit of getting other people to sign your name to writs.
[Some little discussion about this question, between Judge Jackson
and Mr. Knott, ensued here.  When it was through, the Judge proceeded with the cross-examination.]
126 
HIGH COURT OF IMPEACHMENT.
Q. Have you told all you know about this matter? Wasn't it merely
a difference of opinion of it as to the law?
A. About all I recollect, Judge. I was afraid of misunderstanding
the law, and examined it about the service. I had my view about it,.
and didn't expect to have any trouble.
Q. Didn't you ask me to wait till the next morning for an answer, and
you would answer then, if I would release you under the attachment?
A. That was the arrangement made in the end about the matter.
Q. Well, did you answer?
A. I did.
Q. How did the case turn out.?
A. It was dismissed at the prisoner's cost.
Q. Didn't Mr. Dowdy hand in the return to one of the papers?
A. No, the return was not handed in by Uncle Jimmy.
Q. Didn't you, or do you recollect anything that he had to do with
the matter?
A. I have no recollection about it if he had. I was a little excited at
the time, and it may have escaped my memory.
Q. What excited you?
A. Well, I thought, Judge, that you spoke to me pretty short.
Q. What did I say?
A. Well, I have told, I believe, as near as I can recollect.  You told
me that if I was not in contempt, I didn't know my duty. I told you I
thought I did, and we talked awhile about it.
Q. Didn't I make that observation after you was called up under the
attachment, or wasn't it before?
A. Yes, sir, it was after I was called up under the attachment.
Q. And have you no recollection of Dowdy saying anything about the
affair?
A. None.
Q. Now I wish I had an attorney. I want to ask some questions about
personal matters, and don't like to do it myself. Mr. Eaker, how long
have you lived about Bloomfield?
A. Near twenty-two years.
Q. What offices have you held in that county?
A. The first office I held there was Clerk of the Circuit and County
Courts. I was Clerk about seven years. I have held no other offices
but Justice of the Peace and Justice of the County Court.
Q. Have you ever signed what is commonly called a lie-bill?
A. No, sir, I never did. I know what you refer to, and I can tell you
all about it, and prove what I say, by plenty of men from south-east
Missouri. I would like to explain.
Q. Never mind; just answer my questions. Didn't you state, under
oath, once, that what you had said on a former occasion was false?
[This question was objected to by Mr. Hardin. After discussion, the
objection was withdrawn, and the witness was proceeding to answer in
his own style, but was so frequently interrupted by the Judge, in the
course of his narration, that the reporter could make nothing of it. Senator Rains objected to the altercations between the witness and the respondent, and after stating his objections, the matter was dropped.]
JUDGE JACKSON. I am through with the witness for the present.
Mr. KorTT.  Mr. Eaker, before this attachment was issued against
you, was the Judge distinctly informed that you had been served with
the mandamus only by copy?
A. I cannot say that I so informed him myself. There was nothing
said about it that I remember, in our conversation before the court, between the County Court and Judge Jackson's court. At that time I told
12T
I 
HIGH COURT OF IMPEACHMENT.
my counsel about it, and they, my lawyers, represented the matter to
the Judge.
Q. What was the manner of the Judge in- court during the pendency
of the matter?
A. He appeared to be angry. He seemed as if he thought I was trying to get the advantage of the court.
Q. You say you did yourself apprise him of the fact that you had not
been properly served after the attachment issued?
A. Yes, sir.
Q. In making answer to the copy, did you plead to the service?
A. Yes, sir. After I was compelled to answer on the copy, I was discharged.
JUDGE JACKSON.  YOU said, I believe, there was considerable contention
about the matter. Wasn't it principally by your lawyers?
A. Well, I believe Mr. Kitchen did contend that he had some rights
there; that he was a lawyer, and so on.
TESTIMONY OF JAMES WALKER.
JAMES WALKER called for the State and examined by Mr. Knott.
Q. Mr. Walker, where do you reside?
A. In Stoddard county, at Bloomfield.
Q. Are you acquainted with Matthew Moore?
A. Yes, sir. I am acquainted with him.
Q. Were you present at the November term of the Stoddard Circuit
Court, 1858?
A. Yes, sir.
Q. Had you a suit pending in that court?
A. No, sir. Well, I recollect I was expecting one to be there, between Moore and myself, but whether it was in court then, I don't remember.
Q. Did Judge Jackson, here, and you have any conversation in regard to the controversy between you and Moore?
A. Yes, sir. I had some chat with the Judge about it.
Q. Well, sir, please state to the Court the time and place, and what
the conversation was-what he said to you in relation to that suit. Tell
all you know about it, as succinctly as you can.
A. I will, as nigh as I can recollect.  Me and Mr. Moore was disputing about some property. He was claiming my lots in Bloomfield. I
thought he had no right to them; and that was the matter that the suit
was to be about.  Me and Mr. Jackson talked about it.  He asked me
how had we come out with our difficulty, if we had fixed it up, or something like that. I told him we hadn't fixed it up, and I didn't know as
we would. Then he told me it didn't matter; that the field-notes of
Bloomfield had got lost, and, says he, they can't hurt you anyhow.  I
told him that I thought not, and he said, that's my opinion about it.
That was about all there was of it.
Q. Where did this conversation take place?
A. It was at my stable. I had met the Judge and we had talked
about it there.
Q. Do you recollect the time of the month?
A. No, sir. I don't recollect the time of the month, nor what day of
the week it was. It was last November court.
Q. Had the Sheriff served a writ upon you?
A. No, sir, he had not. The Sheriff didn't serve me. He sent it
down by a man. I recollect that the Sheriff had notified me before
this that he would send it down. I recollect now there was a suit there.
Q. How did the suit turn out?
128 
HIGH: COURT OF IMPEACIHMENT.
129
A. Well, they took a change of venue to Scott county.
Q  Has it been tried yet?
A. No, sir, I believe not.  It was to have been tried in Benton at the
last term, but I think they told me that it wasn't tried, because the
paers were not sent up in time.
Q. Was this conversation before court?
A Well, I believe it was; or now I come to think about it, I thinkit
was during the session of the court.
Q  Did you mention the fact that you had had this conversation to
any body?
A. It's likely I did. I think I spoke of it afterwards to several in
talking about the case.
Q Did the Judge tell you not to mention what he had told you?
A -No, sir, he didn't. I spoke about it to any person that asked. I
didn't consider it any secret, or anything of that kind, and I just said
there was no danger of my losing the lots, for Mr. Jackson had told
me this.
Q. When you say Mr. Jackson, you mean the Judge here?
A. Yes, sir.
Mr. KNOTT.  YOU can take the witness.
CROSS-EXAMINED BY JUDGE JACKSON.
Q. Do you remember the time of the week this conversation between
you and me took place?
A. I do not.
Q. Do you remember we walked down together from a store, as you
were going on to your place; wasn't it the last part of the week?
A. I can't recollect whether it was or not.
Q. How did the conversation come up?
A. I think you asked me about the matter, and I told you as I said.
Q, Didn't I observe that if the south-west corner of the town was
moved, it would affect my property? Isn't that the way we came to
talk about it?
A. Yes, you had that chat to me.
Q. Didn't I say it might change my lines?  Was it more than a
casual observation?
A I don't know, Judge.
Q. How long were we talking?
X  I don't recollect.  Not many minutes.
Q. Had Moore talked to you any about a compromise, and didn't I
ask you whether you Ihad compromised your difficulty with him?
Wasn't that the way of it?
A. Mfr. Moore had talked to me about a compromise, but he got mad
and said he wouldn't compromise; or, at any rate, he said it could be
made up, but it would take more than before.  
Q. When did you say this was?
A. I think it was before court.
Q. Had he withdrawn his proposition?
A. No, sir. He sent down worde that he would compromise for $1,000.
Q. Was that before or since the conversation with me?
L It has been since. There has been a good deal of chat before and
since, and I don't remember precisely about it.
Q V Well, Mr. Walker, did I give you any advice about your suit?
A. The only advice you gave me was what I have said. You told me
the field-notes was lost, and he couldn't hurt me about the matter.
Q Didn't I speak to you about my own property; or how did I ap.
proch you on the subject?
9 
HIGtH COURT OF IMPEACHMENT.
A. Well, I could hardly say.
Q. Did I tell you how you could get ahead of him and beat him in
the suit?
A. No, you didn't tell me that.
Q. Did I tell you what lawyer to get, or what course to pursue about
the matter?
A Not that I recollect.
Q. Are you certain it was during court week that we had this conversation?
A. Yes, sir, I am pretty certain.
Q. Hadn't court adjourned?
A. I don't think it had.
Q. Don't you recollect that it was in the latter part of the week?
A. I do not.
RE-EXAMINED BY MR. KNOTT.
Q. Where does Matthew IH. Moore live?
A. In Cape Girardeau.
Q. What is his business?  Isn't he a lawyer?
A. Yes, sir.
Mfr. KXOTT.  That is all.  You can go.
RECALLED BY JUDGE JACKSON.
Q- If the south corner, or the south-east corner of the town was
moved, wouldn't it change my lots? Wouldn't the change affect my
property in town then by changing my lines? From the way the lots
are laid off, wouldn't a change have materially affected my property?
A. Yes, I suppose if the corner was moved either way, north or south,
it would affect your lines.
SENATOR GOODLETT. I want to understand the witness whether a suit
was pending between him and Moore at this timne?
A. Yes. Notice had been served upon me.
JUDGE JACKSONT.  How long was it after this conversation before you
told any one anything about it?
A. I don't remember.  I told several about it shortly after that.  I
was just as apt as not to have told it the same day, and if any one
asked me, perhaps I did.
SENATOR PARSOXS.  Was the notice served on you a notice to quit, or
a notice to appear and defend the suit?
A. I forget. I don't recollect that.
Mr. IAr.DIN.  The record will show.
TESTI[O~NY OF J. J. JACKSO',\.
JOHN J. JAC1isox called and examined for the State by Mr. Y-nott.
Q. VWhere do you reside, SIr. Jackson?
A. In Stoddard county, Missouri.
Q. Were you acting as Deputy Sheriff of Stoddard county in January
last?
A. Yes, sir. ] have been acting as Deputy Sheriff for better than
two years-it will be three years next August.
Q. Did you, some time in January last, havl  in your custody the
body of one John R. Maine?  ]f so, state how he came into your custody, what become of him, and all about it, as briefly as you can?
A. Well, sir, he came into my custody-was delivered to me by the
Constable, with a mittimus.  There was no other papers but the mritti
130 
HIGH COURT OF IMPEACHMENT.
131
mus that I saw. As far as the mittimus was concerned, I can't say now
for what it said he was charged. I believed at the time that it was a
good mittimus.
Q. Well, how did he get out of your custody?
A. He was taken by me before Judge Jackson by a writ of habeas
corpus. I do not know that I can recollect the time exactly; it was,
though, I think, about the middle of January. I made a return to the
writ the same day it was served upon me, in an hour or two afterwards.
I returned that I had the man in custody, and took in the papers, or
rather I took in the warrant of commitment, or mittimus, for there was
no other papers in my hands.  I took it to the office where the Judge
was, and after a while he was discharged.
Q. Did the Judge ask you for any other papers than the mittimus?
A. I think he did. I told him I had no others.
Q. Did he make any rule upon you or anybody for the production of
other papers in the case?
A. I think not. If he did, I do not know it.
Q. Did he make any inquiry as to the facts?
A. I believe he made no inquiry for further facts than the mittimnus
showed.  He asked me if I had any other papers, and I told him I had
not. I think that was about all he asked me.
Q. For what purpose did you have Maine in custody?
A. The warrant commanded me to safely hold him  to answer some
charge. I was going with him to jail at Greenville, as our jail had been
condemned.  I received him the evening before, and left him with my
son, while I went out home (I live five miles out of town) to make preparations to go the next day to Greenville. When I camne back next
morning I found the writ of habeas corpus had been issued, and I made
my return to it.
Q. What time of day was it when you took the prisoner before the
Judge?
A. I don't recollect exactly; it was along about 10 or 12 o'clock.
Q. Did you see anything of one Charles Russell that day?
A. Yes, sir; I had seen him the day before under trial before Jonas
Eaker.  After an examination, he was held to bail.  )AIy son was prosecuting him.
Q. What was done with him?
A. Wmn. F. Cryts had him in custody, holding him to see if he could
give bail. They told me a writ of habeas corpus had been taken out for
him.
Q. Were you in the room whlen the writ of habeas corpus wvas returned?
A. Yes, sir.
Q. Well, tell us what took place-tell the details as near as you can?
A. I cannot detail all that took place. I heard no conversation except
that this Mr. Cryts came in with a bunch of papers, and either handed
them to the Judge, or laid them down before him.  The Judge picked
them up, and said he might falsify his return, or he would falsify his return if he wasn't careful. After that, both Russell and Maine were
released.
Q. Did the Judge read the papers that were handed to him, or did he
look at them to see what they were?
A. I cannot say whether he did or not.  I don't think he opened them.
I only know the Judge made some remark like that I have repeateld.
Q. \What was the charge against this man?
A. Russell was charged with passing counterfeit money.
Q. Were you in the examining court at the time of the examination?
A. Yes, sir; my son was the prosecutor in the case and I was there
looking on.  It was before Jonas Eaker. 
HIGH COURT OF IMPEACHMENT.
Q. Where was this trial?
A. Well, Judge Eaker lives out of town, or three-quarters of a mile
from the court-house. He held his court then in the court-house, in the
courtroom.
Q. Well, where was this room in which Judge Jackson heard and de termined these cases?
A. It was in the same building, up stairs. It was a room used as a
law office by Mr. Tyrell.
Q  Did Judge Jackson make any rule upon Mr. Eaker, or any one, to
produce any papers?
A. I cannot say —not to my knowledge.
JUDGE JACKSON. I made none. It's not necessary to trouble yourself
about that.
Mr. KNOrT.  Did you observe Mr. Cryts or any one go out after pa
:eris?
A I think I recollect Mr. Cryts went out of the house once or twice,
.:and once he brought in the papers as I have said.
Q. Do you recollect whose name was signed to the mittimus for the
man in your custody?
A. It was signed by James Creary, a Justice of the Peace in our county.
That is my recollection of it.
Q. You will please look at that instrument and say whether your sig nature is attached to it?
[Paper shown to witness.]
A. Yes, sir; I think that is my signature.
Q. Do you recollect at any time of having or serving a writ of mandamus for Judge Eaker, returnable at the Mfay term of the Stoddard
Circuit Court?
A. Yes, sir. I recollect that I had such a writ. I do not know that I
can state now, positively, what it is about, of my own knowledge.  On
the streets I heard about it, but I do not recollect the reading of the
mandamus.
Q. How did you serve it?
A. I served it by delivering to Judge Eaker a copy, and made my re
-turn on the original. I returned the manner in which I had served the
-,writ.
Q. Were you in court on the return day of the writ?
, Yes, sir; I was.
Q Do you know anything about an attachment issued for Mr. Eaker
for not answering this mandamus?
A. Yes, sir. I served it on Jonas Eaker.
Q. Do you know upon what conditions Mr. Eaker was discharged under that attachment?
A. No, sir; I do not. I may have heard, but I did not hear anything
of what took place in court myself. Just about the time I returned the
attachment I was called off to attend to something or other."
Q. Do you recollect who was foreman of the grand jury at the August
term, 1859?
A. Yes, sir. I believe it was Mr. James Hale.
Q. Do you know anything about Judge Jackson going before the
grand jury at that term of the court for any purpose?
A. Well, sir, I did not see Judge Jackson before the grand jury, my
self; I heard some conversation between the Judge and David G. Hicks
in regard to something that was before the grand jury-a paper, I think
it was-and the Judge then said he would go and see about it. I can't
say of my own knowledge where he went, but he went out and came
back with a paper. Mr.   Hicks said that was the paper alluded to. It
132 
HIGH COURT OF IMPEACELMENT.
was a paper citing to some sections of the law and some decisions of the
Supreme Court.
Q, Where was this interview?
A. It was in the court-room. Judge Jackson had, I think, adjourned
court for the day; the court was not in session, anyhow. The Judge
and myself were walking about there in conversation about something,
I couldn't say what it was now. MIr. Hicks came up and said to the
Judge something about the paper circulating before the grand jury.
The Judge remarked that he would go and see about it, and he went
and came back with the paper. It was handed to me. I can't say what
I did with it. Air. Hicks said that was the paper alluded to.
Q. Was the grand jury in session at that time?
A. Yes, sir, I think so. So far as I know it had not been discharged;
though whether they were doing business at that mnoment I couldn't
say of my own knowledge, because I didn't see them. I never visit the
grand jury when it is in session unless I am called to do it on business.
Q. Did you hear the charge to the grand jury at this term of the court?
A. No, sir; I may have heard a part of it as I was passing in and out
of the court-room; but I couldn't say that I listened to it particularly.
CROSS-EXAMINATION BY JUDGE JACKSON,
Q. What you did hear of that charge-was it pretty good?  Did I get
it off tolerably well?
Mr. KN-OTT.  May it please the court, I must object to the respondent's asking questions and making Buncombe speeches in the same
breath. We have had enough of it already. The gentleman has heretofore displayed his wit sufficiently, and it is now time for him to settle
down to a proper and legal examination of witnesses.
JUDGE JACKSON.  YOU, Mr. Knott, examine witnesses in your own
style, and I'll do the same. I object, too, to your jumping up with your
objections so often. If you would hold still we would get along faster.
Don't get into a stew.  There, now, I have forgotten what my. question
was. You have knocked me off the track again. Let it go now. (To
witness:)
Q. Mr. Jackson, you speak of Wm. Cryts being a Constable. When
was he elected?
A. I cannot say exactly. I suppose he was elected in August last.
I couldn't say, except from my understanding from others.
Q. Wasn't there considerable difficulty about his election? Wasn't
there a number of reports about it, or about a former election being
illegal?
A. Do you mean the contested election case?  I know nothing about
it, except what I heard from others.
Q, Well, at a former election, wasn't it reported that there bad been
a good deal of illegal voting done, by which Isaac Brand was elected?
A. I heard something of the kind.
Q. Well, wasn't that election set aside, and a new election ordered,
and wasn't it then that Mr. Cryts was elected?
A. I believe that was the way of it.
Q. What relation is Isaac Brand to Judge Eaker?
A. He is son-in-law to the Judge, I believe.
Mr. KNOTT here objected to the course of the cross-examination, saying that these questions and answers all related to things outside of the
issues to be tried in this Court.
JUDGE JACKSON explained his reasons for asking the questions in relation to the Constable's election. He had told Cryts that his return was
contradicted by his statements, for what seemed to him, with his inti
133 
HIGIH COURT OF IMPEACHMENT.
184
mate knowledge of the facts, a very good reason. Hie and many others
in that community knew that Judge Eaker was a little disappointed at
the manner in which the election for Constable had finally resulted, and
he thought, and others thought, that when Judge Eaker and his friends
had heard there was a writ of habeas corpus got' out for this man, they
had kept the papers back as a little trap to catch Cryts in, hoping that
he would thereby contradict his return, or make a false return, and they
could break him of his office for it. These things, he said, Senators
could not understand or know without an explanation, and therefore
he wanted to go into this matter fully. If the truth was fully stated, it
would be seen that this matter of the election of Isaac Brand, Judge
Eaker's son-in-law, and his being ousted by Cryts, prompted the course
pursued by Judge Eaker in keeping back the papers, and he had prevented Cryts from a contradiction of his return to keep him out of the
little trap set for him by the cunning Judge.
Mr. KNOTT. I cannot but object and protest against Judge Jackson
testifying his suspicions about this election case, but  JUDGE JACKSON. No matter. I waive the question. I am sorry I
asked it.
Mr. KNOTT.  Yes, you no doubt are now.  You see the predicament
that your remarks get you into.
The cross-examination was here resumed.
Q. In the examination in the Russell case you said you attended, I
believe?
A. Yes, sir, I was there.
Q. Well, how did you know Russell was held to bail or committed?
Was it by the simple say-so of the Justice, in the court-room, or did
you see any papers in the hands of the officer?
A. He handed him no paper that I saw. After the examination was
through, he told Russell he would hold him to bail in some amount,
$300 I think it was, and Russell, or some one for him, asked the Judge
to give him till 10 o'clock the next day to get the bail; and then he
said he would do it.
Q. But how did the man come into the hands of the Constable?
Was there any written order to hold him?
A. None that I know of. I heard him tell Cryts to hold him over till
10 o'clock.
Mr. HIARDIN. You say you heard the magistrate tell the Constable
that he must hold him over till 10 o'clock the next day, and heard him
say that he found him guilty, and demanded a bond in the sum of $300,
and then gave him till 10 o'clock the next day to fill the bond?
A. That's the way of it as well as I recollect.
JUDGE JACKSON. Was I about there that day?
A. I have no recollection of seeing you there.
On motion of SENATORa THOMPSON, the Court adjourned ti  3 o'clock.
EVENING SESSION.
THURSDAY, June 9, 1859.
The Court met pursuant to adjournment.
The managers and respondent attended.
JAMES WALKER, witness on the part of State, was by consent of parties
discharged from further attendance. 
HIGH COURT OF IIPEACHMENT.
After some little delay occasioned by the absence of witnesses, the
taking of testimony was resumed.
TESTIMO'NY OF WILLIAM F. CRYTS.
WILLIA.M F. CRYTS called and examined by Mr. Knott.
Q. Mr. Cryts, you will please state to the Court where you reside.
A. I live in Stoddard county, Missouri.
Q. What is your occupation?
A. At present I am acting as Constable in Castor township, Stoddard
county.
Q. How long have you held that position?
A. Since last September, if I am not mistaken.
Q. Were you acting in that capacity in January last?
A. Yes, sir.
Q. Did you, in that month, have in your custody a man named Charles
Russell?  If so, please state to the court how he came into your hands,
and what you did with him.
A. Well, a writ for him was placed in my hands, and I arrested him.
He was charged with passing counterfeit money. The writ was issued
by Mr. Eaker. I brought him before the Justice.
Q. Was there a trial before the Justice? Tell us about that.
A. Well, sir, there was a trial, and he was committed or bound over.
At the conclusion of the trial he was bound over till the next day, to
give bail. He was placed in my custody to keep till then.
Q. Were you in attendance at Mr. Eaker's courts?
A. Yes, sir. I usually attended his courts, and was then there.
Q. After the Judge or Justice found there was probable cause to believe him guilty, and he was placed in your hands to hold till he got
bail, what became of him then?
A. There was a writ of habeas corpus served on me, and I gave him up.
Q. Who issued that writ?
A. Judge Jackson.
Q. WVell, go on and state all the facts about that writ.
A. I don't know that I can state all the facts, but I will as near as I
can. I made a return on the writ that I had him in custody, and took
him before Judge Jackson. I returned that I had him in custody by
verbal orders from Jonas Eaker.
Q. Did the Judge make any inquiry for the papers in the case?
A. I don't recollect that he did.
Q. Did he make any order for you or the Justice to produce the papers?
A. I can't say that he made any order for the papers. I left my return in the room, and went down after the balance of the papers.  I got
them and brought them in, and laid them on the table.
Q. What were those papers?
A. They were the papers in the case; I think there was everal of
them.  I won'tundertake tosay what they were.  Russell was discharged.
Q. Where did you go after the papers?
A. I went to Mvfiller's store-house.
Q. Who did you get the papers from?
A. From Judge Eaker.
Q. What did you do after laying down the papers on the table?
A. I left the room; when I came back he was discharged.
Q. Don't you know what the papers were?
A. I don't recollect reading them. They were the papers in the case.
Q. Was the testimony taken in the trial among them?
A. Yes, sir, I believe it was.
. And the writ-the warrant for his arrest?
135 
HIGH COURT OF IMPEACHMENT.
A. Yes, sir.
Q. What was Judge Jackson doing at the time you brought the
papers in?
A. I don't recollect. He was at the table, I believe.
Q. Do you recollect whether Russell was arrested and tried before the
Justice the same day?
A. I don't think it was the same day. The writ of habeas corpuswas
issued the next day after the trial.
Q. Did any part of the trial take place the same day that Russell
was arrested?
A. I think not I think it was over two days from the time I madb
the arrest till the trial. I wouldn't say positively, from the fact that I
don't recollect.
Q. Did you hold him in custody during the night before the trial?
A. I did hold him in custody by virtue of the orders given me by
Judge Eaker.
SENATOR PARSONS.  About how long were you absent at Miller's store,
after the papers?
A. But a short time. I couldn't state how long. Probably two or
three minutes.
CROSS-EXAMINED BY JUDGE JACKSON.
Q. Is Jonas Eaker a Justice of the Peace?
A. Yes, sir.  I suppose he is.  I believe he was elected by the people
to that office.
Q. How do you know he is Justice of the Peace?
A. I think I know it, because he was a candidate for the office, and
was elected.
Q. Do you know whether he has ever been sworn as a Justice of thePeace?
A. I do not.
Q. Do you know whether the examination in this Russell case was
reduced to writing?
A. I could not say positively whether it was or not.
Q. Didn't you talk to me about the case before the hearing of the
habeas corpus application?
A. I think you spoke to me about making my return. You met me
in the street, and asked me if I had done it.
Q. How long was this before you had made your return?
A. It was at least an hour, or half an hour.
Q. Didn't I ask you about it on the square, when we met the first time?
A. I couldn't say. I believe it was some time before.
Q. When you did make your return, the papers, you say, were not
delivered to me. How did you come to make a return without the
papers? 
A. I allowed you were a waiting on me, and I thought I could step
down and get the papers afterwards.
Q. Well, how did you come to bring up the papers after making a return? Had I seen the papers before, or did you tell me what they were?'
A. I don't know how it was.
Q. Did you have a warrant when you arrested him?
A. Yes, sir. I had a writ, of course, when I took him in custody.
Q. Do you make returns under oath?
A. I suppose I do.
Q  Did any person tell you to go and get the papers?
A. I don't recollect.
Q. Had he written out the papers when you went after them?
136 
HIGH COURT OF IMPEACHMENT.
A. I don't recollect.
Q. Is that your signature? (showing witness a paper.)
A. Yes, that is my name, signed in my handwriting.
Q  Did you hear the examination of the witnesses before Judge Eaker?
A. Yes, sir, I did hear the examination. 
Q. Well, what did the witnesses say?
A. I can't say what the witnesses said.
Q. Now tell me, when Jonas Eaker told you to take this man, Russell,
and keep him until the next morning, which do you consider it was, that
you had him in custody, or that Jonas Eaker had just set him at liberty?
Mr. KNOTT objected that this question could only elicit the opinion of
the witness upon a matter of law, and was therefore incompetent and
irrelevant.
JUDGE JACKSON claimed that he was not allowed the latitude of ordinary cross-examinations, and stated that he was treated more severely
than the man who was, a day or two previously, arrested for the murder of Mr. Charless in St. Louis.  He wanted record evidence to be produced in the case, and then it would not be necessary to seek the reasons of his official acts from parol testimony.  Finally, however, he
waived the question.
SENATOR WILSON. At the time the writ of habeas corpus was served
on you, requiring you to produce the body of Russell before Judge
Jackson, by what authority did you hold said Russell in custody? Was
it written, or verbal?
A. It was a verbal order.
Mr. KNOTT.  Which did you do first, make your return or bring in
the papers?
A. I made my return first.
JUDGE JACKSON.  Do yOU recollect what I said when you brought
them in?
A. No, sir.
Q. Didn't I ask you if those were the papers in the case? and didn't I
say, "now, if you don't be careful you will contradict your return?"
A. I believe you did.
Q  What became of the papers?
A. I returned them to Mr. Eaker.  I did not do anything with my
return.
Q  Did you ever bring the papers to me afterwards?
A. I don't think I ever brought them to you any more.
Q. Did you ever hear anything about Mr. Moore suing Mr. Walker?
[The witnessed answered that he didn't know anything of his own
knowledge, and the statement made by him was for that reason excluded.]
SENATOR PARSONS.  Did you at the time of making return to the writ
of habeas corpus, or at any time before the discharge of Russell, inform
Judge Jackson that the Justice had ordered you to hold theprisoner
in your custody to give him an opportunity to give bail?
A. I never informed him about it that I recollect.
Mr. KNOTT. Did you deliver all the papers, that Judge Eaker gave
you as the papers in the case, on the table before Judge Jackson?
A. Yes, sir.
Q. Did I understand you as stating that the Judge had asked you if
those were the papers in the case?
A. Yes, sir.
JONAs EAKER recalled and examined by Mr. Knott.
Q. Were you an acting magistrate in January last?
A. Yes, sir, I was.
137 
HIGH COURT OF IMPEACHMENT.
Q. Did you issue a warrant for Charles Russell on any day in that
month?
A. Yes, sir, I did issue a warrant for him to answer a charge of passing counterfeit money.
Q. Pleasestate, Mr. Eaker, the circumstances attending the investigation you gave of the case, whether there was an examination of witnesses against the accused, and what became of the papers in the case?
A. After investigating the case, I gave him until 10 o'clock the next
morning to file a bond for his appearance at court to answer the charge.
The next morning, while I was completing writing out the papers, Mr.
Tyrell, or Mr. Cryts, informed me that the accused had been taken out
of M1r. Cryts' custody by writ of habeas corpus. I went on writing the
papers. I think, now, it was Mr. Cryts told me about the writ, and that
he said he had left /Mr. Tyrell writing out a return. While waiting on
me, he remarked, " I will go and see whether he is done, or what he is
doing." He hadn't the papers at that time. He came back and informed me that Russell was discharged. I then gave him all the papers. I
was not in Mr. Tyrell's office while the matter was before the Judge
there. I know nothing about what took place there.
Q. In the hearing of the case before you, did you reduce the testimony to writing?
A. I took the examination of witnesses in writing, and gave it to Mr.
Cryts, and he took it with the other papers.
Q. Did Mr. Cryts tell you that the prisoner had been discharged, before you gave him the papers?
A. I think he did.
CROSS-EXAMINED BY JUDGE JACKSON.
Q. What time of day did these occurrences take place?
A. It was something near about 10 o'clock.
Q. Didn't you write out the mittimus before?
A. No, sir. I thought I could do what writing I had to do at the
time I fixed for him to give bail.
Q. Do you think you have authority to order men into the custody of
an officer, without any written warrant?
A. Yes, sir. I believe that is customary among Justices of the Peace.
It has been my practice.
Q. What was the state of your feelings towards me before this mandamus proceeding we have talked about?
A. I don't think there were any unkind feelings between us.  There
was not on my part.
Q. What is the state of your feelings now towards me?
A. I have nothing very particular ag,ainst you.  There is one thing,
Judge; when you come back from Jefferson City, last winter, you didn't
speak to me.
The witness was interrupted in his statements of some private matters, and his examination here closed.
TESTIMONY OF JAMES L. HALE.
JAMES L. HIALE called and examined by Mr. Knott.
Q. Mr. Hale, will you state where you reside?
A. I reside in Stoddard county, near Bloomfield, Missouri.
Q. Have you ever been a member of the grand jury in your county?
A. Yes, sir. I was foreman of the grand jury at the last August term
of the Circuit Court.
138 
HIGH COURT OF IMPEACHMENT.
Q. State if you know anything about Judge Jackson's going into the
grand jury at that time.
JUDGE JACKSON objected to allowing grandjurors to testify concerning
what occurred before them; and to give an opportunity for the production of authorities, and for arguments on the objection, the witness was
withdrawn, to be introduced next day.
TESTIMONY OF WILLIAM RINGER.
WILLIAM RINGER called and examined by Mr. Hardin.
Q. Mr. Ringer, Judge Jackson is charged here with having had some
conversation with you, and with giving you some advice in relation to
certain county warrants. You will please state whether you ever had
any such conversation, and if so, what it was, when it was, and all about it.
A. I think it was after the election in 1857, some time in September
or October, in Bloomfield.  I was complaining a good deal about not
getting my pay fobr building a court-house. The Judge asked me if I
had any warrants.  I told him that I had, or that I had spoken to Mr.
Kitchen to draw them for me.  The Judge said that I'd better sell them,
and use the money; that the whole thing was illegal, and that I couldn't
get my pay out of the county. I think that about what I said in reply
was, that the court-house was already up, and the amount of the money
I could get for the warrants would not pay me for the work done. He
said then that Kitchen was liable to me.
Q. What was his language, as near as you can state it?
A. I don't recollect his exact words. Hie said I could move against
Kitchen instead of the county. He said I could recover against Kitchen,
and not off from the county.
Q. What had Mr. Kitchen to do with the matter?
A. I contracted with him as Superintendent of the courthouse.  I
don't say that he acted as Superintendent, but our contract was that
way. The warrants were issued to Kitchen for my benefit. He was to
get the money and pay it to me.
Q. How did this conversation with the Judge begin?
A. I can hardly say. I think he asked me what I had done with my
warrants, or something of that kind. I had been complaining, as I said
before, about not getting my pay. I thought the Judge had some say
in t, and perhaps I asked him about it.  This time he told me that he
had no connection with the business, and told me I had better sell the
warrants; that the whole transaction about the court-house was illegal.
He advised me that the County Court was no court at all. I don't remember what reason he stated.
Q. Where did this take place?
A. It all took place in Bloomfield.
CROSS-EXAMINED BY JUDGE JACKSON.
Q  Did you sue him? Kitchen, I mean.
A. No, sir.
Q. How did we happen to get into this conversation that you speak of?
A. You came by Owen's, Judge, and called me to step aside, if I am
not mistaken, and then we talked about it.
Q. Didn't you tell me that they were selling county warrants at a large
discount, and that you were about to lose a great deal?
A. I don't know; it is likely I did.
Q. Was not that conversation in Miller's store?
A. I think not.
139 
HIGH COURT OF IMPEACHMENT.
Q. Was not what I said this: that if you wouldn't give up the county
warrants, you had no business to talk against the people of the county
that so far as the county was concerned, it had paid?
A. I don't recollect that.
Q. Was not Eaker elected County Court Judge before the time when
you say we had this conversation?
A. I think so.
Q. Had he held any court?
A. I don't know. The election was held in August, I believe, and this
was in September or October.
Q. Was not it as late as November?
A. It may have been.
Q. Did you repeat this to Mr. Kitchen?
A. Yes, sir; I told Mr. Kitchen what took place between you and
myself
Q. What did he say he was going to do about it?  Did he say he would
tell the Legislature?
[Question objected to and waived.]
Q. You say you didn't sue him?
A. Yes, sir; I didn't sue him.
Q. What was the reason?
A. I don't like to state the reason unless I am bound to do it.
Q. Well, didn't I ask you if you had warrants to sell? Didn't I propose to buy your warrants, or something of that kind, and was not that
the way the conversation came up?
A. If it was so, I don't remember.
Q. Did I advise you what lawyer to employ?
A. I don't think you did.
Q. How did you come to make this contract with Kitchen?
A. He was the Superintendent, or he signed his name to the contract
as Superintendent.
Q. When was the contract made?
A. It was made in June, 1857, if I am not mistaken.
Q. When did you get the house up?
A. I got it up the next fall some time. The brick work was done at
the time we had this talk.
Q. You say this conversation was in October, 1857?
A. Yes, sir. I can't be exact about the time, but I think it was then.
Q. Who was in your bond as contractor?
[Question objected to and not answered.]
Q. Was not Kitchen and you in partnership?
[Objected to and not answered.]
SENATOR WILSON. I wish to understand the witness upon one point.
In the outset, I understood him to say that he had some warrants for
sale, or that he had some warrants, and the Judge advised him to sell
the warrants.  What does he say about that now?
A. Judge Jackson did tell me to sell the warrants. I did not have
any warrants at that time, but I thought that I could get them. Kitchen
told me that he could get the warrants, and they were to be drawn by
Kitchen for my benefit. Judge Jackson told me that Judge Eaker's
court was no court, or that there was no County Court, and that Kitchen
was not legally an agent or Superintendent of the county. He said the
only course I could take would be to hold Kitchen liable, and that if I
sued the county I couldn't recover. He said Kitchen was responsible
to me.
JUDGE JACKSON. Were you and I tolerably intimate when this conversation took place?
A. I think we were at that time.
140 
HIGII COURT OF IMPEACHMENT.
Q, Hadn't we a difficulty about settlement for some plastering, and
didn't you bring suit against me about it?
A. Not since that time, Judge; all the lawing of your's and mine was
long before that.
Q. How long?
A. I couldn't tell.
Q. Mr. Ringer, are you certain this conversation was in the year 1857?
A. Yes, sir, I am satisfied it was in the fall after the election.
Q. What disposition did I tell you to make of the money?
A. We had some more conversation, but about that I don't recollect.
TESTIMO.N  OF JAMES B. ODELL.
JAMS B. ODELL called and examined by Mr. Knott
Q  Mr. Odell, where do you live?
A. I live in Bloomfield, Stoddard county, Missouri.
Q. What is your occupation?
A. Well, I am part of a lawyer. I practice a little sometimes.
Q. Were you at Thomasville on the third Monday of April, 1858?
A. I was there.
Q. Were you in court during the trial of the case of the State vs.
DePriest?
A. Yes, sir. I was counsel for the defendant.
Q. 3Mr. Odell, did you have any conversation with Judge Jackson in
regard to that case?
A. Yes, sir, I had a conversation. I don't know that I had a conversation with the Judge about it, but he had with me.
Q. Well, what was it? what was said?
A. Mr. DePriest had been convicted of disturbing the peace of a
family; well, I don't know, he was either convicted or plead guilty, and
at the same time was indicted for resisting an officer. The conversation
the Judge had with me was this: Hle observed to Mr. Hull, or myself,
that we could safely take a conditional fee in the case; that there were
two distinct indictments, and only one offense, and that that would be
a good plea. I did take the case, but being quite young in the practice,
I didn't make a plea of a former conviction, but moved to quash the indictment, giving the former conviction as a reason for the motion. The
motion to quash was overruled, and the Judge said that was not the
way to do it.  The Circuit Attorney entered a nole prosequi.  I got the
fee.
Q. Were you employed at the time of the conversation?
A. No, sir. DePriest came to me afterwards. It was his son that
employed me. Solomon DePriest, the old man, was not there.
Q. You took the case then after this conversation with the Judge?
A. Yes, sir. I took it, as the doctors say, on the principle of "no
cure no pay."
Q. Was the Circuit Attorney by at the time the Judge had this conversation with you?
A. I don't remember.
Q. Did the Judge make that remark, that you could safely take a conditional fee, when the Circuit Attorney was not present?
A. Yes, sir. I recollect now that he was not there.
Q, Who was the Circuit Attorney?
A. John R. Woodsides.
Q. After your motion to quash was overruled, did the Judge advise
you to plead a former conviction?
A. Yes, sir, I think he did.
Q. Who was in the case with you?
141 
HEIGH COURT OF IMPEACHMENT.
A. I was alone.
Q. How did the conversation with the Judge come up?
A. Mr. Hull1, and the Judge, and I were in a room, and I don't know
how it came up.
Q. Did you suggest the facts to the Judge, or did you commence the
conversation about the case?
A. No, sir, I did not.
Q. Was the nature of the two offenses charged in the two indictments
the same?
A. I don't remember much about that.
CROSS-EXAMINED BY JUDGE JACKSON.
Q. Was that the first court you attended?  Did we get together there
the first time?
A. No, sir.  We got together first at Greenville.
Q. Was not Mr. Hull with you when we met at Greenville?
A. No, sir.  Mr. Hull joined us at Eminence.  We then went with
you through to ThomaEville.
Q. Was not Woodsides in the company going from Eminence to
Thomasville?
A. I do not remember.
Q. Well, at the time the conversation occurred, were not you and  r.
Hull talking and complaining that business was dull, and then didn't I
say, "now, young men, here is Green DePriest is indicted twice for thle
same offense, and you might get a fee from him?"
A. I don't know that the conversation camne up that way. It might
have been so.
Q. Didn't I tell you my impressions were that the two indictments
were for the same offense, and that if I was correct in my impressions
about the facts, you might safely take a fee in tle case?
A. It is likely you are right, Judge.
Q. Didn't you say DePriest wouldn't employ you, and wasn't it then I
told you you might take a conditional fee?
A. We had a long conversation about it, and it may be as you say,
though I don't remember.
Q. Didn't you make a motion to quash on the ground that tihere was
no legal offense charged, or something of that kind?
A. I don't recollect.
Q. Was not Mir. Hull with you in the case?
A. That was not my understanding.
Q.'low much did you charge him?
A. I charged him five dollars, but it was not enough.
Q. Didn't you div ide the fee with MIr. Hull?
A. No, sir.  Hie claimed the right to half of it.  He pretended like I
agreed to divide witli him, because he was present when the conversation tcok place, but I told him it was not enough to divide, and that if I
had to give any of it to him, I would give it all.
Q. Well, when you made your motion to quash on the ground that
there was a former conviction, was it not then that I suggested that that
would be a, good ground of acquittal?
A. Yes, sir, you did say that that would be a good ground of acquittal.
Q. When  we were talking about it, didn't I. tell you that if my  irnpressions about the facts were correct, you might go into the case whether
you got a fee or not, and that you would get the glory of acquitting himna
which would be worth as much as the fee?
A. I thlink you did tell me something like that.
Q. And you did get the fee?
142 
HIGH CO()URT OF IMPEACHMENT.
A. Yes, sir. I know I got it, and Hull raised a fuss with me because
I wouldn't divide. [Laughter.]
Mr. KNOTT.  Was it in consequence of advice given you by the Judge
that you undertook the defense of the case?
A. Yes, sir; it was.
The Court adjourned.
FIFTH DAY.
FRIDAY, June 10, 1859.
The Court met pursuant to adjournment, and was opened by proclamation.
The managers and respondent attended.
SENATOR CHURCHILL offered the following resolution, whichi was thereupon considered:
Resolved, That the testimony in the case now pending before the Senate be
published daily for the use of the Senate, and that thirty-five copies be published; thirty-three for the Senate, and one for the managers, and one for the
respondent; and th,at copies be given to no other persons.
SENATOR PARSONS offered the following substitute for this resolution
Resolved, That as soon as the evidence is closed on the part of the State, the
same shall be printed for the use of the Senate. And in like manner, when the
evidence is closed on the part of the respondent, that shall be printed for the use
of the Senate.
This substitute was agreed to by the following vote:
AYES-Messrs. Brown, Byrne, Fox, Frazier, Goodlett, Gullett, Harris, Iltedgpeth, Horner, McFarland, McIlvaine, Parsons, Peyton, Rains, Pichardson,
Thompson, and Vernon-17.
NOEs-MIessrs. Churchill, Coleman, Hialliburton, McFerran, Morris, Newland,
Robinson, Scott, Wilson, and Wood-11.
Absent-Messrs. Hyer, Johnson, Jones, and Watkins.
Absent on leave —Mr. O'Neil.
SENATOR GULLETT  then moved  to lay the substitute on the table,
which was disagreed to by the following vote:
AYEs-Messrs. Gullett, Harris, Morris, Robinson, Scott, and Wright-6.
No:s-Messrs. Brown, Bvrne, Churchill, Coleman, Fox, Frazier, Goodlett,
Halliburton, Hedgpeth, Horner, McFarland, McFerran, MIcIlvaine, Novlaqud,.
Parsons, Peyton, Rains, Richardson, Thompson, Vernon, Wilson, and Wood-22.
Absent-Same as before.
SENATOR MCFERPAN then offered the following amendment  to thie
substitute:
Strike out all after the word "Resolved," and insert as follows:
That no part of the testimony in this ease shall be published until the entire
evidence is taken, and then thirty-six copies shall be printed; thirty-three
for the use of the Senators, one for the respondent, and one for each of the
managers.
149 
HIGH COURT OF IMPEACHIMENT.
This amendment was disagreed to by the following vote:
AYres-Messrs. Byrne, Coleman, Halliburton, Harris, McFerran, McIlvaine,
Morris, Rains, Robinson, and Wright-10.
NoEs-Messrs. Brown, Churchill, Fox, Frazier, Goodlett, Gullett, Hedgpeth,
Horner, McFarland, Newland, Parsons, Peyton, Richardson, Scott, Thompson,
Vernon, Wilson, and Wood-18.
Absent-Same as before.
The question then being upon the adoption of the substitute, it was
adopted by the following vote:
AYzs-Messrs. Brown, Byrne, Churchill, Coleman, Fox, Frazier, Goodlett,
Gullett, Halliburton, Hedgpeth, Horner, McFarland, McIlvaine, Newland,
Parsons, Peyton, Rains, Richardson, Scott, Thompson, Vernon, Wilson, and
Wood-23.
NoEs-Messrs. Harris, McFerran, Morris, Robinson, and Wrigh-5.
Absent-Same as before.
The examination of witnesses for the State was then resumed.
TESTIMONY OF JAMES L. HALE.
JAMES L. HALE recalled and examined by Mr. Knott.
[The witness testified to his residence, and to his having been foreman of the grand jury at the last August term of the Stoddard Circuit
Court, in reply to interrogatories similar to those propounded yesterday.
He was then asked the following:]
Q. You will please state whether Judge Jackson visited the grand
jury room, where the grand jury had retired to consider of presentments, during the session of the grand jury.  If so, did he there give,
or undertake to give, any instructions or opinions to the grand jury,
upon any matter of law or fact, touching or concerning their duties?
If so, what were the instructions or opinions given by him at that time?
JUDGE JACKSON objected to the witness answering this, and argued
the question of its pertinency at some length. HIe took the ground
that a grand juror could not, under his oath and the law, be allowed to
disclose what transpired in the grand jury room, except in cases of indictments for perjury.  He further argued that he had, as a Circuit
Judge, a legal and moral right to go to a grand jury room while they
were considering presentments, and to instruct them as he saw proper
upon questions of law; and that the instructions thus given constituted
a part of "the counsel of the State" mentioned in a grand juror's oath,
which he was bound to keep secret. To support the position that cases
of indictments for perjury afforded the only exception to the rule requiring grand jurors to keep secret all that transpires in the jury room,
he cited and read sections 15, 16, and 17, 3d article, Revised Statutes,
p. 1169; also section 65, "act to establish courts of record, and prescribe
their powers and duties," p. 542, Rev. Stat. Mo.; also Tindle vs. Nichols,
p. 326, and State vs. Baker, p. 338, 20 Mo. Rep.
MIessrs. HARDIN and KNOTT replied briefly.  They reviewed the authorities cited by Judge Jackson, endeavoring to show that they did not
establish the principles for which he contended. They argued that a
crime or misdemeanor, committed before a grand jury, whether it be
murder, assault, perjury, or misdemeanor of a Judge, was not thereby
protected from punishment; that all the functions of a Judge were
public, and that he had no legal or moral right to give secret instructions or charges to a grand jury; that a Judge could not ignorantly
mistake his duty and charge a grand jury secretly, for no law nor practice could be found to warrant such a proceeding; that the charge of a
144 
HIGHI COURT OF IMPEACHMENT.
Judge was not part of the "counsel of the State," which grand jurors.
were sworn to keep secret; that it was not the design or effect of the
question proposed to the witness to elicit from him evidence given before
the jury, and that the cases cited by the respondent related to such a
question as that, and hence were not pertinent in the present issue;
that it was a dangerous and inexcusable usurpation of power for aJudge
to assume the functions of a Circuit Attorney, and visit the grand jury
room for the purpose of discharging those functions, or for the purpose
of suppressing any indictment against himself or others, or for the
worse purpose of instigating a criminal prosecution against a personal
enemy; and in support of the various positions assumed by them, they
cited 1 Chitty's Criminal Law, pp. 313-317, together with the cases
cited by the respondent.
JUDGE JACKSON replied, combatting the positions taken by the managers, and rearguing those taken by himself in his opening remarks.
The question for the action of the Court being, is the question propounded by the managers pertinent and proper? the vote stood as follows:
AYEs-M.essrs. Brown, Byrne, Churchill, Coleman, Fox, Frazier, Goodlett, Guilett, Halliburton, Harris, Horner, McFarland, McFerran, McIlvaine, Newland,
Parsons, Peyton, Rains, Richardson, Thompson, Vernon, Wilson, and Wright
-22.
NoEs-Messrs. Hedgpeth, Robinson, Scott, and Wood-4.
Absent-Messrs. Hyer, Johnson, Jones, and Watkins.
Absent o,n leave-Mr. O'Neil.
Eccused from voting —Mr. Morris.
So the question was decided proper, and the witness answered as follows:
A. The Judge came into the room, and we were talking with him.
We asked him several questions upon points we had been considering.
I can't say as to what the points were now, but they were something
similar to the public charge he gave us.
Q. Did he say anything in regard to the law about gaming?
A. I don't know whether it was the first or second time he talked
about the law of gaming.
Q. Well, what did he say about gaming either time?
A. We had been talking about gaming, and we asked him if he considered it gambling to play for watermelons, oysters, and the like of that.
As I said, we had been considering that matter, and had found one or
two bills, I believe.
Q. Was there anything in the public charge on that subject?
A. I disremember whether he said anything about playing for whisky
and watermelons.
Q. Had you at that time a charge against him for such an offense?
A. Yes, sir.  And we found a bill, I think.  Whether we gave it in
before his visit to the grand jury or after, I don't recollect.
Q. What did he say with regard to the law of gaming?
A. He stated that he did not consider it gaming to play in this way,
on this ground, that it was not betting. He said if we played for money
it was a different case.
Q. Did he apply his exposition of the law to any particular case?
A. I don't recollect.
Q. How did the conversation commence?
A. I don't recollect that either-whether it was that we commenced
by asking questions, or whether he spoke about it first himself  Mr.
Carlisle asked some questions, and I asked some myself.
Q. What did he say his object was in coming there first?
10
145 
HIGIH COURT OF IMPEACHMENT.
A. I don't know whether it was the first or second time, but once
when he came in he said that he had understood some person or persons
had been engaged in tampering with the grand jury, and he inquired
about that.
Q. Do you know who he referred to?
A. I do not, though I thought at the time it was to Mr. Eaker and Mr.
Phelan, from some circumstance, I cannot now say what.
Q. Did he instruct the grand jury whether they could find an indict
ment against him for any act of his as Judge?
A. I don't recollect of his saying that it was not competent for the
grand jury to find an indictment against him. There was an instrument
of writing which had been handed around, and whether he named it
first, or we did, I can't now tell.
Q  What was that paper?
A. It was a paper referring to some part of the law.
Q. Do you know what law it was that the paper referred to?
A. I don't recollect, though I think at the time we took it as referring to a case about an attachment against Jonas Eaker.
Q. Had there been any complaint of oppression under consideration
to which the law cited in this paper seemed to apply?
A. Yes, sir. There had been a complaint made, and we supposed it
was founded on the law that this paper referred to.
Q. What did the Judge say about the paper?
A. He demanded it-we gave it to him; whether he called for it, or
whether some one mentioned it to him, I won't say.
Q. Did he say it referred to his conduct, and that he was not indictable for his official acts?
A. I don't recollect that.
Q. Did he ask for the paper the first thing when he came into the
room?
A. I don't think he did.
Q. Did he explain what it was that brought him there?
A. 1 don't remember.
Q. Did he express any opinion in relation to the law referred to in the
paper?
A. Well, I believe he did, though I can't now say what it was.
Q What time was it that he got the paper; was it at the first or
second visit?
A. I don't recollect.
Q. Well, do you recollect whether both visits were on the same day?
A. I think one visit was in the afternoon, and the other was in the
forenoon.
Q Had you consulted the Circuit Attorney in regard to the matters
concerning which the Judge instructed you?
A. I rather think we had.
Q. Was he in the grand jury room before the Judge came?
A. It is my impression that he was.
Q  Who was acting as Circuit Attorney at that time?
A. David G. Hicks was acting as Circuit Attorney.
Q. Had he seen this paper that you have mentioned?
A. Yes, sir. He had seen it.
Q. Don't you know whether Judge Jackson spoke of the paper before
any one in the room mentioned it to him?
A. I don't recollect. It is altogether likely it was that way.
Q Were you considering the question of his presentment for any act
of oppression previous to this conversation?
A. I don't think we were.
146 
HIGH COURT OF IMPEACHMENT.
SENATOR WILSON. I do not consider it competent to inquire so particularly as to what the grand jury was doing.
Mr. KNOTT. We only desire to show the motive of the respondent in
his instructions to the grand jury, and to elicit the facts necessary to explain that motive.
CROSS-EXAMINED BY JUDGE JACKSON.
Q. Didn't I tell you not to hesitate to find a bill against me for any
act not done as a court, if there was any testimony going to show my
connection with any act that you thought indictable, though my opinion
was that you could not indict me for my official conduct?
A. I so understood you.
Q. Wasn't that paper that you have spoken about an intimation that
there would be a case of that kind presented?
A. I think that case was under investigation at the time.
Q. Mr. HIale, as far as your knowledge goes, am I in the habit of using
contumelious, insolent, and insulting expressions towards lawyers and
parties litigant?
A. I never saw anything that I thought much out of the way.
The witness was here dismissed, and on motion of SENATOR HALLIBURTON, the Court adjourned.
EVENING SESSION.
FRIDAY, June 10, 1859.
The Court met pursuant to adjournment.
The managers and respondent attended.
On motion of JUDGE JACKSON, the Court awarded an attachment
against John R. Woodsides, a witness who had been subpenaed for the
defendant, and was not in attendance.
TESTIMONY OF MOSES HARVEY.
MOSES HARVEY called and examined by Mr. Knott.
Q  You will state if you please, Mr. Harvey, whether you were a grand
juror at the last term of the Stoddard Circuit Court.
A. I was.
Q. You will state if you please whether Judge Jackson was up in the
grand jury room while it was in session, at that term of the court.
A. Yes, sir, he was there once or twice. 
Q. Did he give the grand jury any instructions?
A. I consider that he did.
Q. What day of the court was that?
A. I won't say; I don't recollect.
Q, You speak of the August term?
A. Yes, sir, I do.
Q, What did he say his business was in visiting the grand jury room?
A. I don't know that I could tell. He came in, and some chat got
up between the grand jurors and him. He went on to state what constituted gaming; what would be considered betting. The ideaconveyed
was this: that playing cards for watermelons and oysters was not considered betting.
147 
HIGH COURT OF IMPEACHMENT.
Q. Did he apply that opinion of the law to any particular case?
A. Well, he seemed to be talking about gaming cases generally. I
won't say that I give his opinion of the law, but that is what I understood.
Q. Do you know what brought up the conversation?
A. Well, I don't know precisely what it was. In the grand jury we
had found 1 don't know how many bills, but I think we had included
twelve or fifteen, or twenty, all in the same bill, for such betting as he
was talking about.
Q. Well, tell us what Judge Jackson did and said.
A. I don't recollect what else he said.
Q. What time of day was it when he came?
A. I can't say. I never expected to be called on to swear about it,
and I don't remember.
Q. Had you received any paper referring to certain points of law?
A. Yes,.-ir. There was a memorandum of certain sections of the
law that had been handed round among the jurors.
Q. Was'the Judge in the grand jury room more than once?
A. Yes, sir. I recollect of his being there twice.
Q. Did he give you either time any instructions regarding this paper?
A. Yes, sir, he gave us some instructions about it. I don't know as I
can tell just how it was, but the idea was that if the person who did it
was known, he was liable to indictment.
Q. Indictment for what?
A. For sending it before us.
Q. What case had the paper connection with?
A. I don't recollect.
Q. Do you recollect what the law was that the paper referred to?
A. To some sections of law in the statutes. It was something about
oppression in office.
Q. What became of the paper?
A. I don't know what became of it.  I don't know whether the Judge
took it away or not.
Q. Did the Judge say anything about the law that the paper referred to?
A. I think he did, but I can't say what it was.
Q. Was this conversation about the paper had the second time that
Judge Jackson visited the grand jury room?
A. It is likely it was.
Q. Who was charged with oppression?
A. It was Judge Jackson.
Q. What did he say about that charge?
[Question objected to and discussed for some time, when the objectionr was withdrawn.]
A. This charge we had against the Judge was for some kind of oppression, I believe. The paper had reference to the law in sach cases.
Q. Did the Judge say anything about the charge, and the power of
the grand jury to indict him?
A. I recollect of his making some statement, upon which he went on
to say that he was not liable to indictment for any of his official acts.
CROSS-EXAMINED BY JUDGE JACKSON.
Q. Was not there other officers mentioned by me at this time?
Didn't I instance Justices of the Peace, County Court Judges, Judges
of the Supreme Court, and other judicial officers; and didn't I point
out the distinction between officers of trust and judicial officers?
Didn't I say that the County Court Judge was not like the Judge of the
148 
HIGH COURT OF IMPEACHMENT.
Circuit Court; that he was a trust officer; and wasn't it then that I said
that the Judge of the Circuit Court was not indictable for his official acts'!
A. I won't say about the others, but you said the Judge of the Cir cuit Court was not indictable for his official conduct.
Q. Was not something said about Judge Eaker being indicted for
issuing county warrants without authority?
A. Perhaps there was. I don't recollect.
Q. Was this at the August term of the Circuit Court?
A. Yes, sir. It was at the August term.
Q. Was the Circuit Attorney, Woodsides, not there?
A. I think not. I think Mr. D. G. Hicks was acting as Circuit At torney.
Q. Well, wasn't I sent for, or did I go to the grand jury room without
being sent for?
A. You were sent for, I think.
Q. Wasn't there something said about David Hicks being young, and
that you wanted me sent for, for that reason?
A. There was something of that kind said, though what it was I do
not recollect.
Q. Well, about this paper. When I came up and asked about it,
didn't I say whoever sent it in was in contempt of court, and liable to
indictment?  Wasn't that what I said?
A. Well, you said that he was liable to indictment. I don't think you
said that he could be indicted for contempt. I may have forgotten.
Q. Wasn't it that word had been sent in that a case of this kind
would be presented-I mean that there would be a charge against meand wasn't the paper sent in before the charge was made?
A. I don't recollect about that.
Q. How did I come to know that this paper was before you?
A. I can't say.  You didn't know from me.
Q. Who was it that made the complaint against me?
A. I don't know, but I suppose it was Judge Eaker.
Q. What was it about?
A. It was something about a mandamus. That was what I heard it
was about, if I recollect aright, and your issuing an attachment against
him.
Q. Have you been in court much?
A. I have been in every Circuit Courtin the county since I have been
in the State, which has been for about three years.
Q. What has been my general course in relation to lawyers, litigants,
and others?
A. I don't know, hardly. If I ever knew you to do anything wrong,
I was not sensible that it was wrong.
Mr. KNOTT.  Had David Hicks been attending on the grand jury before this visit of the Judge?
A. Yes, sir. He had.
Q. Did he see this paper?
A. Yes, sir. He did.
Q. And you say the Judge was in the grand jury room twice?
A. Yes, sir. I think he was there twice.
Q. When you say you have been in every Circuit Court that has been
held since you have been in the State, do you mean that you have been
there incidentally, from time to time, or that you were there all the
time?
A. I have only been in each court occasionally.
Q. Did you have an opportunity to observe closely the conduct of the
Judge towards lawyers and litigants?
A. No, sir. I can't say that I had.
149 
HIGH COURT OF IMPEACHMENT.
TESTIMONY OF WILLIAM VANDIVER.
WILLIAM VANDIVER called and examined by Mr. Knott.
Q. Mr. Vandiver, state to the Court where you reside?
A. I reside in Butler county, Missouri.
Q. Were you a member of the grand jury, at the April term of the
Circuit Court, 1857, in that county?
A. I was foreman of the grand jury at that term.
Q. On what day of the week did the Circuit Court commence?
A. On Monday.
Q. On what day was the grand jury discharged?
A. On Tuesday, the next day.
Q. You will please state to the Court the circumstances under which
you were discharged.
A. On Tuesday, some time after dinner, the Judge asked me if we
had any business before us, and he observed that he wished we would
finish, and hand in a report that evening. I told him that we had a
good deal of business before us. I don't know that he said anything
more at that time. As I went out I saw the Circuit Attorney. We
conferred about the business, and held over until sundown. We completed what business we could, made some reports, and told the court
we had business on hand unfinished.  Says he, "gentlemen, you are
discharged."
Q. How long a time is allowed to the Circuit Courts in that county?
A. A week.
Q. Did the Judge assign any reason for discharging the grand jury?
A. There was no reason assigned to me.
Q. Was there anything said in relation to what you were to do with
the unfinished business?
A. Not that I recollect of.
Q. Had there been any presentments made when the Judge first
spoke to you about finishing your business?
A. I believe not.
Q. Have you any idea of the amount of unfinished business on hand
at the time you were discharged?
A. I have no idea.  We had a good deal.
Q. Where was the Clerk of the court at that time?
A. I couldn't tell you. I didn't see him.
CROSS-EXAMINED BY JUDGE JACKSON.
Q. Was it Tuesday morning or Wednesday that the grand jury was
discharged?
A. It was Tuesday evening, I think.
Q. Didn't I tell you that we had no Clerk, and that tha,was the reason
why the grand jury would have to be discharged?
A. I think that perhaps you did.
Q. Did you hear me tell any person else that we had no Clerk, and
couldn't proceed with the business?
A. Not as I recollect.
Q. Did you hear me say that there was no Clerk, and that that was
the reason you would have to be discharged?
A. That was the general chat; I don't know whether you told me so
or not.
Q. What was the matter with the Clerk?
A. RPeport said that the Clerk was sick, but I did not see him myself.
Q. Were you in court all the time?
A. I was there a part of Monday.
150 
A
HIGH COURT OF IMPEACHMENT.
Q. Did you see the Clerk in court Monday?
A. I believe I did. I think he was reported sick the next morning.
Q. Did you hear me give any reason why the grand jury was discharged?
A. No, sir, I didn't hear you give any that I now recollect.
Q. When the grand jury came in, and I asked you if you had any
returns to make, did you make any returns?
A. Yes, sir, and reported further unfinished business.
Mr. KNOTT.  Wasn't it the general understanding about town that
the Clerk was drunk?
A. Yes, sir, that was the general understanding, though I didn't know
him to be drunk, not having seen him myself.
JUDGE JACKSON. That was my understanding of the matter.
Q. Is there any person here who was on the grand jury?
A. Yes, sir. MIr. Ruff, Hamilton Scott, and Daniel Epps were all on
the grand jury, and they are here.
Q. Wasn't it you that I had the conversation with in relation to what
you should do with reference to the witnesses summoned to appear before the grand jury?
A. No, sir, I think not.
Q. Well, it seems it was not with him that I had the conversation.
What became of the bills of indictment that you handed in?
A. I don't know. We came in, and just left three or four indict
ments, and reported unfinished business on hand, and then were dismissed.
TESTIMONY OF DANIEL EPPS.
DANIEL Errs called and examined by Mr. Knott.
Q. Where do you live, Mr. Epps?
A. I live in Butler county, Mlissouri.
Q. Where you a member of the grand jury at the November term of
the Circuit Court in April, 1857?
A. I believe I was.
Q. How long was the grand jury in session at that court?
A. I don't recollect. It has been some time, and I have forgotten.
Q. Were you discharged before the business was finished?
A. Yes, sir. I think we were discharged before we got through.
Q. Do you know whether it was represented to the court that you
could not get through with the business before you were discharged?
A. I don't know.  I know we couldn't do anything because we had
no Clerk.
Q. How did you come to be without a Clerk?
A. Well, sir, I suppose the Clerk was drunk. I didn't see him myself,
but that was my understanding from what I heard.
CROSS-EXAMINED BY JUDGE JACKSON.
Q. Do you remember whether it was the second or third day of the
court when the grand jury was discharged?
A. I couldn't say. It was either Tuesday or Wednesday.
Q. Wasn't it the second day of court when the Clerk was reported
sick or drunk?
A. I think it was, though I couldn't be positive.
Mr. KNOTT. Did any member of the grand jury inform the Judge
that they had unfinished business which it would be impossible to dis;pose of before they were discharged?
A. All that I know about that is only hearsay.
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HIGH COURT OF IMPEACHMENT.
TESTIMONY OF WILLIAM G. PIIELAN.
WILI,LIAM G. PHELAN called and examined by Mr. Knott.
Q. Where do you reside, Mr. Phelan?
A. I reside in Bloomfield, or convenient to it, Stoddard county, Missouri.
Q. What is your profession?
A. I am a lawyer, and a farmer by courtesy.  I have a farm at least.
Q. Were you at a Circuit Court held at Bloomfield, in May, 1858?
A. Yes, sir, I was there.
Q. Do you know whether there was pending, at that term of the
court, a proceeding against Jonas Eaker by a mandamus?
A. Yes, sir. Judge Eaker spoke to me as counsel.
Q. You will please state the case, and what occurred when it was
called up for trial in court?
A. It was a mandamus against Judge Eaker, requiring him to show
cause why he had not done something in regard to a road, or the reason
for some act as County Judge. I am not able to state definitely the act
complained of in the application for a mandamus, though I have reflected
upon it, and have endeavored to make myself able to do so. I desired
to appear as amicis curie. There has been some reflection upon the
technical expression, as I used it, and I repeat it here for that reason.
Judge Jackson would not allow me to appear in this capacity, and when
I attempted to do so, he ordered me to shut up, or to hush up, I will not
be positive as to the exact expression; perhaps he used both. He also refused to allow my associate in the case, Mr. Kitchen, to appear in this
capacity. I had been out of court for some purpose, and as I came in,
Mr. Eaker whispered to me that the court had refused to allow Mr.
Kitchen to suggest that there had been no service of the writ. I could
hardly believe it at the time, and attempted to speak, but the Judge
stopped me as I have stated.
Q. What was the manner of the Judge upon this occasion?
A. It was harsh and severe in the extreme.  He was evidently laboring under great excitement.
Q. When you attempted to speak, what was your object?
A. My object was to state to the court that there never had been any
service of the writ of mandamus.
Q. Did you make that statement?
A. I endeavored to do so. We were both speaking at once. I no
doubt used the words; but whether I succeeded in getting that fact before the court is doubtful, owing to the violence of his manner.
Q. Do you attend the Dunklin Circuit Courts'!
A. Yes, sir, I do.
Q. Were you at the Circuit Court held at the county seat of Dunklin
county, on the second Monday of May, 1858? 
A. I am satisfied that I was.
Q. Were you connected in any manner with the cause of Smith vs.
Cude, pending at that term of the court?
A. Yes, sir. I was lawyer for Smith, indirectly. Mr. Cude, or his attorney, filed an application for a change of venue in the case. Mr. Bedford, I think, was representing Mr. Cude, and made the application.
The court sent the cause to Pemiscot county.
Q. What are the relative positions of Dunklin and Pemiscot counties?
A. They are adjoining counties, but during the greater portion of
every year it is almost impossible to get from one to the other. I could
get from one to the other if I had a good steamboat.
Q. What is the difficulty?
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HIGH COURT OF IMPEACHMENT.
A. The difficulty consists in a large swamp, which lies between the
two counties.
Q. Was it convenient to the parties and to the counsel engaged in the
cause?
A. As far as convenience is concerned, I will only state that I would
have had to travel two or three hundred miles. It was necessary to go
something like that distance to get around the swamp, and go down to
Pemiscot county.
Q. At what season of the year is it necessary to take this circuitous
route, in order to pass from one county to the other?
A. About the time of the fall and spring terms of the court. I was
never there myself, and consequently I state these facts merely from my
knowledge of the country, and as I have always understood them to be.
Q. Which side of the case were you on?
A. I was counsel for Smith.
Q. Were the attorneys or the parties agreed that the case should be
sent to any other county?
A. Yes, sir, the lawyers on both sides fully concurred. We wanted
the case sent to Bollinger county, I think it was.
Q. Was this fact represented to the court?
A. Yes, sir. It had been agreed between the lawyers and the parties,
and it was so stated to the court. When I speak of parties, understand
me, Mr. Smith, the plaintiff in the cause, was not in the country. He
had assigned his interest in the suit to a Mr. Johnson, and Mr. Johnson
employed me.
Q. What reason was assigned besides the agreement for requesting
the cause sent to Bollinger county?
A. It was more convenient, and more suitable in every respect.
Q. What was the Judge's reply when these facts were represented to
him?
A. It was very brief, brief in the extreme, and anything but courteous. It was indicated more by his arm, (witness illustrating by his own
arm,) saying that he would have nothing said about it.  We understood
very well what it meant, and I could not convey that meaning by repeating his exact language, even if I were able to do so, which I am not.
It was utterly impossible to get his whole meaning from what he said.
It was more by looks and gestures than by language.
Q. Were you present at the same term of the court when a change
of venue was awarded in the case of the Point Pleasant and Dunklin
County Road Company vs. Moses Farrar?
A. I may have been present, but I know nothing about that case.
Q. Were you present when a change of venue was awarded in which the
same company was plaintiff and Nathaniel G. Murphy was defendant?
A. I was not present when the application was made, and I did not
draw the petition.
SENATOR PARSONS. What were the causes assigned in the application
for a change of venue in the first case you mentioned?
A. I saw the petition, and I waived the usual notice. It was for prejudice on the part of Judge Jackson.
Q. Which side took the change of venue?
A. Mr. Cude. I was representing the other side.
Mr. KNOTT. Who were the attorneys in the case of the road company against Murphy?
A. Mr. Watkins, I think, represented the road company. Mr. Murphy took the change. The cause alleged was the same-prejudice on
the part of the Judge.
Q. Who were the opposing attorneys in the case of the road company vs. Murphy?
153 
HIGH COURT OF IMPEACHMENT.
A. I think Mr. Bedffrd, Mr. Arthur, and Mr.  Hull, and perhaps
others.  My impressions are not distinct.  I paid no marked attention
to the case.
Q. Were you at the Circuit Court held at Poplar Bluff, Butler county,
in May, 1858?
A. Yes, sir. I have attended every Circuit Court held in Butler
county during the past five years.  I was there at that time.
Q. Were you in court during the trial of tile cause of Gibson vs.
Dunn?
A. I was counsel in the case.
Q. You will please state what occurred during the trial of that cause;
whether you observed anything unusual in the conduct of the Judge,
and if so, what it was.
A. I noticed nothing unusual in the trial of this cause nothing
that had any particular connection with it. The trial of the cause was
commenced in the forenoon, and I cannot tell the exact stage of the
case when the court took a recess for dinner.  After dinner, Judge
Jackson came in apparently very much excited.  I made a motion-I
am unable to say now what it was, whether it was addressed to the
court, or whether it was the commencement of my argument of the
case before the jury: I am inclined to think it was the latter.  The
Judge stopped me.  He said that I couldn't go on; that I was in contempt of court, and that I had been tampering with the grand jury. I
don't recollect what my reply was, though I recollect being astonished
at the manner in which the charge was brought against me. I think I
said, "I believe not, Judge," and I wished to defend myself. I cannot
state exactly what occurred. There were some little altercations between us, and I demanded to know what the charge was. The Judge
told me to sit down. I did sit down, but got up again directly, and he
told me to go on with the case, but he wished me to understand that I
was in contempt of court, and that I would have to answer for itunderstand me that I do not pretend to give his exact phraseology. I
was under the impression at the time that a certain man who was a
particular friend to the Judge had betrayed the secrets of the grand
jury, and I still think he did.  I proposed to myself to take some steps
in regard to the matter; however, that leads me into outside matter,
and it is not necessary to mention it further here.
Q. When you attempted to rebut the charge brought against you, did
you succeed in getting an opportunity?
A. I endeavored to do so, but I never got leave to say a single word.
His reply to may inquiries concerning the charge, and to my offers to
exculpate myself, was, in effect, that I might go on with the case then
on hand.
Q. What was the character of his address to you?
A. It was very severe, very severe, indeed, and his manner showed
much excitement. 
Q. Were you excited yourself at the time?
A. I was not excited at that moment. Afterwards I was, when he
told me to "sit down," to "hush up," "take your seat."  I do not pretend to give the words exactly, though it was one or the other, and
made an impression upon me as very severe and insulting.
Q. What was the motion you had made in the case of Gibson vs.
Dunn, just prior to this interruption?
A. I have endeavored, from reflection, to ascertain, but I have not
been able to recollect it.
Q. Had you done anything to excite the Judge in the manner that
you speak of, in the trial of this cause?
154 
HIGH COURT OF IMPEACHMENT.
A. I think not. I think his excitement proceeded from another matter, a matter having nothing to do with this case.
Q. Were you present at the Ripley Circuit Court, November term,
1857?
A. I was.
Q. Did you see Mr. Fox there?
A. I did.
Q. Does he practice there?
A. Yes, sir. He attends that court as a lawyer.
Q. Were you present in court at that term when any difficulty occurred oetween the court and Mr. Fox?
A. I was there when the Judge called attention to a paper. I think
it was an answer. I do not remember the case at this moment; but it
is my impression that whatever it was, I was on the other side.  When
he called Mr. Fox's attention to the paper, he said to him, "you have
either sworn to a lie, or caused your client to do so."
Q. What was Mr. Fox doing at the time?
A. I think he was talking to some other lawyers. Hie was not addressing the Judge.
Q. Mr. Phelan, I will call your attention to the case of a man named
Atterbury, and an alleged application by you for the privilege of a writ
of habeas corpus, made before Judge Jackson, and get you to state the
circumstances of the case, as they occurred.
A. Yes, sir, I will state the facts to the best of my ability. The man
Atterbury had been arrested, and was held in custody in Dunklin
county.  It is not needful to enter into all the details of the case.  He
was detained by a warrant from a Justice of the Peace.  I do not remember the charge, though my impression was at the time that it was
made simply with the intention of getting time, and detaining him,
until a party could reach the residence of the Judge. and take him on
a capias.  Be that as it may, I applied or drew up a petition for a writ
of habeas corpus, and it was sworn to by Atterbury's son. There were
several parties mixed up in the affair, and bearing in mind one section
of the law requiring such petitions to give a faill statement of the cause,
in doing this I found it necessary to use the name of David G. HIicks.
It was averred in the petition that Atterbury was first taken by Hicks,
without any shadow of right. The petition further stated that he could
not give bail in Dunklin county, where he was a comparative stranger,
and that he was able to give bail in Stoddard county. I may not state
correctly the allegations of the petition, but I recollect that I found it
necessary to use the name of Mr. Hicks, and when I presented the petition, the Judge refused to issue the writ, giving as a reason that the
name of Mr. Hicks was used.  He wrote "refused," and made a memorandum of a certain section of the law on the petition.
JUDGE JACKSON.  Is that mark on the petition now?
A. I do not know. 
JUDGE JACKSON.  What became of the man?
A. I do not know. I suppose he escaped. He broke jail, or something of that kind.
[Mr. Knott objected to the interruption, and after some discussion,
the examination of the witness was resumed.]
Mr. KNOTT.  Do you say that the writ of habeas corpus was refused
Atterbury?
A. Yes, sir.
Q. Can't you remember the offense with which he was charged?
A. I cannot; though if offense at all it would have been triable in the
Circuit Court of Dunklin county.  He could give security or bail in Stoddard county, though he was not able to procure it in Dunklin.
155 
HIGH COURT OF IMPEACHMENT.
Q. Is Dunklin county in the Fifteenth Judicial Circuit?
A. Yes, sir.
SE-,ATOR PARSONS.  Did the Judge assign any other reasons for refus ing the writ except that David G. Hicks was mentioned in the petition?
A. It is my impression that he did not.  The cause of the imprison ment was not presented at that time, for a reason stated in the petition.
Q. Were you present at a Circuit Court held at the town of Poplar
Bluff, in November, A. D. 1857?
A. I was.
Q. What day did the court commence that term?
A. I believe it was at the time set-the first Monday in November.
Q. What day did the court adjourn?
A. In accordance with the law a week is allowed for this court, but
to the best of my recollection, at this term court adjourned on Tuesday
night.
Q. You will please detail to the Court what you observed unusual in
the conduct of Judge Jackson-how it came that the court adjourned so
soon, and what you may know about the matter generally.
A. It is not easy to detail the incidents that occurred at that court.
The first day business went on as usual, but on that evening or after noon the Clerk got on a "bust," or little spree, and the next morning he
was incompetent to the discharge of his duties; in fact he was incapable
of moving in his bed. Court called at the usual hour, but we had no
Clerk. I had some business in court that I deemed very important, and
being anxious for business to proceed, I proposed to the court to act as
Clerk myself. He said I could do so if I would not act as lawyer during
the term. That did not suit me, and afterwards I found an excellent
pensman, Mr. Donaldson Walker, and requested the court to appoint
him Clerk, pro tent. He said he could not do so, because the Clerk had
not requested it. I do not know that that is exactly what he said, but
it was something tantamount to that. Not being willing to abide by
that, I waited till noon, and got the Clerk to sign a paper requesting the
Judge to appoint Mr. Walker Clerk, pro tem., by the assistance of his wife,
who helped me or some other person to hold him up in bed while he
signed it. I took the paper to Judge Jackson, and he still refused to
make the appointment, and the consequence was we had no Clerk at all
at that term of the court after the first day, and no business of any consequence was done.
Q. Did Judge Jackson assign any reason for refusing to make the appointment of a Clerk?
A. I cannot say that he stated anything which would be accounted a
reason. He said that Blount was a good fellow, or something of that kind.
Q. Was the Judge apprised of the condition of the Clerk?
A. I cannot doubt but that he was. I was present when others told
him of it, and I told him myself. It was a notorious fact also, and I
suppose everybody about the Court knew it.
Q. Did any serious detriment to the business of court result from this
turn of affairs?
A. I cannot speak for others. I must have lost myself some three or
four hundred dollars in consequence of a failure to proceed with one
case-a St. Louis claim for $1,300 or $1,400, upon which I expected judgment at that term.
Q. What became of the papers pertaining to the causes set for trial at
that court?
A. The lawyers in attendance were trying to fix up their business as
well as they could. The Judge took all the papers, I suppose all that
he could find-took the key of the office, turned everybody out, and put
the papers under his arm.
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HIGH COURT OF IMPEACHMENT.
Q Do you know whether any one applied to him for the papers in
any cause for any purpose?
A. I do not remember seeing any one do so. I would not like to do
it myself under such circumstances.
Q. Did he assign any reason for taking possession of the papers?
A. The only one I heard was that he was fearful the papers might be
purloined. I only give the substance, or my understanding of the statement.
Q. Were any causes tried on the second day of the term?
A. I do not remember. If so, the Judge acted as Clerk.
Q. Was any order made suspending the Clerk for neglect of duty?
A. I think not. None that I know of.
Q, Was any charge of misdemeanor in office preferred against him?
A. Not up to the time of the last County Court. I understand that he
is beyond your jurisdiction now-that he has left the State.
Q. Were you in court at the time the grand jury was discharged?
A. I was.
Q. What occurred at that time?
A. The usual questions were asked, and the foreman of the grand jury
replied that they had more business unfinished. I do not recollect
whether they made any presentments or not; I think they made one.
Q. Did the grand jury go home as soon as they were discharged?
A. No, sir. The most of them remained in town a day or two.
Q. Were you at the April term of the Ripley Circuit Court?
A. I was.
Q. Were yon present at the trial of William Kinsey?
A. I cannot say. In some case at that term of the court I was desirous
to take down the testimony. Whether it was the Kinsey case or not I
don't know. I am totally unable to recollect in what cause it was that
the difficulties in regard to taking down the testimony occurred. Well,
when we asked for time, the Judge said that the witnesses were not
brought there for counsel to write down their testimony. He refused
to allow time for this purpose, and we were not able to accomplish it.
Q. What was the manner of the Judge upon that occasion?
A. It was very severe and harsh. There were a number of counsel
engaged in the cause.  The Judge was on one side, and most of the lawyers on the other My recollection of the case, however, is not distinct.
[The witness was here interrupted and made to repeat, several times,
portions of his testimony.]
Q. Were you, at the April term of the Ripley Circuit Court, 1858,
present pending the cause of James Moore vs. John Eldridge, administrator of the estate of William Parker?
A. I was counsel in that case.
Q. Please state the conduct of Judge Jackson in that trial.
A. His conduct on that occasion was very kind to me.  I suppose that
on the other side they could not say so much.  I do not remember that
any difficulty occurred during the trial. I agreed to the testimony
which counsel for the other side prepared to incorporate in a bill of exceptions. I understood that they had a severe time about this bill of
exceptions. I believed the testimony as prepared by counsel set forth
the facts in evidence before the jury substantially as they were.
Q. You will please state the practice in Judge Jackson's courts in regard
to saving exceptions. When exceptions are taken,are they written out
and signed at the time, or do you wait and incorporate all the exceptions
to the ruling of the court, during the progress of the trial, in one bill?
A. The practice in Judge Jackson's courts has varied in this particular. I believe the latter course is the one now generally pursued.
Q. Were you present at a Circuit Court held at Stoddard county on
N
157 
HIGHI COURT OF IMPEACHMENT.
the third Monday of November, 1857, during the trial of Sarah Buckner, on an indictment for murder?
A. Yes, sir.  I was present, and was one of defendant's counsel.
Q. You will please give the court a succinct history of the manner in
which Judge Jackson conducted that trial?
A. There were but two witnesses examined for the prosecution in this
case.  One was defendant's son, and the other William C. Grimsley, exSheriff of Stoddard county. Mr. Grimsley went on to give in his testimony at considerable length. He was under examination two or three
hours. Mr. Woodsides, the Circuit Attorney, finally asked leave to
withdraw the witness, which was granted, and the trial went on.
Q. Did you object to the withdrawal of the witness?
A. We made what objection we could. I cannot say whether any exception was entered of record. We were not allowed to speak of
Grimsley's testimony, and when Judge Jackson announced that the
testimony of the witness was withdrawn, we knew well enough it was
useless to make objection. He is very decided. When he has once
made a decision, it is impossible to get him to review it. You may talk
of the laws of the Medes and Persians, but they were not more unalterable than Judge Jackson's decisions.  Mr. Davis alluded to the
statements of Grimsley not as testimony, but by way of illustration.
He was stopped in his argument by the court.  I being the oldest attorney in the cause, tried to conclude the argument for the defense; and
in my argument before the jury, I wished to allude to the statements
of Grimsley for the purpose of removing any impressions they might
have made on the minds of the jury. The Judge stopped me, also, and
reiterated that the evidence of Grimsley was withdrawn from the jury.
I was not willing that the verdict of the jury should stand, and wished
to have a chance to take the case to the Supreme Court; but I had not
time then to prepare a bill of exceptions. In this matter the Judge
treated me with more than kindness. However, I am anticipating; I
will come to that directly.  I filed a motion for a new trial, and Judge
Jackson adjourned the court to a day one or two weeks subsequent. I
was compelled to leave the place, and while I was gone, I was taken
sick and was unable to attend on the day to which Judge Jackson had
adjourned the court. He continued his kindness to me, however, and
adjourned the court a second time to a day perhaps three weeks subsequent to the day of trial. After I returned home, on the day appointed
I presented a bill of exceptions. In making out the bill of exceptions,
I believe I put in the motion for arrest of judgment (I inserted it then,
because it was the first time I thought about it,) the point that the testimony of one witness, uncorroborated, was not sufficient to support a
conviction for a capital offense. In discussing this, the Judge persisted
in saying that the testimony of Grimsley was not withdrawn. When I
adverted to the fact that I was not permitted to comment upon the testimony of Grimsley, and that we had not been allowed thebenefit of a
cross-examination, the Judge took offense, and made some threat. He
said that he was going to do something. I asked him was it fine?
He said, "no, worse than that."  I asked him was it go to jail?  He
said, "no, worse than that," again.  "Then," I said, "I suppose you
mean to strike me from the roll."
Q. When did this occur?
A. I have not, perhaps, made myself understood. This was in my
argument of the cause before the jury. I adverted to these facts and
others, but the Judge persisted in saying that the testimony had not
been withdrawn, and refused to sign the bill of exceptions until it was
incorporated.
Q. Did you say that Grimsley was a witness on the part of the State?
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HIGH COURT OF IiPEACHMENT.
A. Yes, sir. While he was on the stand under examination, the
Judge observed, "Mr. Circuit Attorney, I would withdraw that witness."
Hie made use of some expression tantamount to that, if it was not those.
very words. The Circuit Attorney did not seem to take the hint given
him, and the examination continued until the adjournment at noon.
As soon as court convened after dinner, the Circuit Attorney asked
leave to withdraw the testimony of this witness. The Judge said "well,"
and the testimony was accordingly withdrawn. When Mr. Davis, my associate in the case, spoke of it by way of illustration, and not as testimony, the conduct of the Judge was then harsh in the extreme, so
much so that Mr. Davis gave up the case, saying that if he could not act
for the defendant without the dictation of the court, he would abandon
his cause. As I said before, when I came to argue the case, I spoke of
Grimsley's testimony to divest the minds of the jurors of any impression that it was testimony. The Judge told me I must not speak of it
-that it was not testimony. I endeavored to explain to him my
purpose. He seemed to get angry, and threatened me. Then it was
that I asked would he fine? and he told me "worse than that," was it
go to jail? and when he told me it was worse than that, I said, "I
reckon you intend to strike me from the roll."  The point about the.
testimony of one witness, uncorroborated, not being sufficient, never
struck me until I came to prepare the motion in arrest of judgment.
It is proper to observe that the prosecution rested the case on the testimony of the prisoner's son alone, after the testimony of Grimsley was
withdrawn. When I presented the bill of exceptions, as I before stated,
he refused to sign the bill until Grimsley's testimony was incorporated.
Q. Was Mr. Grimsley examined in the presence of the jury?
A. Yes, sir. The examination lasted an hour or two; and his testimony
was withdrawn from the consideration of the jury as I have stated.
Q  What was the conduct of the Judge during the examination of
the witnesses?
A. As regards his conduct towards myself it was as it should have
been,-as usual I did not take a very active part. Tie and Mr. Davis
conducted the examination of the witnesses principally. He seemed to,
be more the State's attorney than Mr. Woodsides.
Q. What  was  the nature of Grimsley's testimony so far as you
heard it?
A. I recollect that it was confined to a conversation with the accused,.
in which it was alleged she made certain confessions. All that was
given of it was against her.  We relied upon the cross-examination to
bring out the fact of the admission of a daughter of the accused that
she had killed Buckner. This daughter was his step daughter, and it
was alleged that he had committed a rape upon her, and that she had
either killed him herself, or assisted in killing him. Her admission to
Grimsley, of this kind, we were anxious to get before the jury.
SENATOR PARSONS. Did the prosecuting attorney comment bfore the
jury on Grimsley's testimony?
A. To the best of my recollection, I think not, nor advert to it in any
manner.
On motion of SENATOR WILSON, the Court adjourned.
159-, 
HIGH COURT OF IMPEACHMENT.
SIXTH DAY.
SATURDAY, June 11, I859.
The Court met pursuant to adjournment, and was opened by proclamation.
The managers and respondent attended.
WILLIAM G. PHELAN recalled and his examination resumed.
Q. Mr. Phelan, do you know the place of residence of this man Atterbury?
A. At this time I do not. At the time when the petition for the writ
of habeas corpus was presented to Judge Jackson, I am of the impression that he resided in Stoddard county. He had moved from the
county of Dunklin, had gone back there for some purpose, and was arrested on some pretext, as I understood, for the purpose of allowing the
Sheriff to get there and take him with a capias.
Q. You will please look at this paper (handing it to the witness) and
see whether it is the petition presented by you to Judge Jackson?
A. Yes, sir. I know this to be the paper. It is my handwriting, and
I observe the memorandum made by Judge Jackson. I am truly
happy that the paper is here.
Mr. KNOTT.  We are done with the witness.
CROSS-EXAMINED BY JUDGE JACKSON.
Q. Mr. Phelan, you say that you are a farmer and lawyer?
A. Yes, sir. I am a lawyer, and a farmer I hope. I have a farm at
least.
Q. Do you work it yourself?
A. Occasionally I do.
Q. In which of the two capacities are you most expert?
A. I endeavor to fulfill both to the best of my ability.
Q. Have you more than one farm?
A. Yes, sir, I own several.
Q. Do you carry on more than one yourself?
A. I cannot say that I do.
Q. Well, Mr. Phelan, are you a religious man?
[The managers here objected to the course of the cross-exanmination,
but the witness stating that he would like to answer, he was permitted
to proceed.]
A. I cannot say that I am particularly religious. I am no spiritualist, but I do not contemn religion. 
Q. Do you not approve of the Mormon doctrine and practices?
A. No, sir, I do nob.
Q. Have not you a house near by your own, where there are some
females that you stay with about as much as you stay at home?
A. No, sir. Nothing of the kind.
Q. Don't you often stay two or three days at that house without going
home at all?
[Senator Parsons objected that the character of this cross-examination was probably improper, and below the dignity of the Court, whereupon Judge Jackson withdrew the question.]
Q. Mr. Phelan, state if you please, whether this is the paper (handing
it to witness) that you told about holding Blount up to sign?
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HIGH COURT OF IMPEACHMENT.
A. Yes, sir. I think it is the paper. I know it more from Blount's
signature than from any recollection of its contents.
Q. Mfr. Phelan, I will inquire about this celebrated mandamus  case.
I believe you stated you were present when it was up in court?
A. Yes, sir. I was not present at the outset. When I came in the
case was called.
Q. How did you come in? Did you appear as an attorney?
A. I was just going to state, Mr. Eaker had spoken to me before, and
when I came in, he whispered to me that the case was called, and that
the court had refused to allow Mr. Kitchen to appear for him. I could
not really believe that I could not be permitted to appear as amicus curio.
When I made the attempt, however, I learned better.
Q. Now, Air. Phelan, wasn't it to prevent an attachment being issued
that you and )Mr. Kitchen were a talking?
A. No, sir, an attachment was issued after I got in.
Q. Well, but what did you appear in the case for? Wasn't. it to pre  vent the attachment?
A. No, sir. I wished to present to the court the fact that there had
been no service of the writ of mandamus. I had so advised Judge
Eaker.
Q. If there had been no service of the mandamus, why did you wish
to appear?  Wasn't it to prevent an attachment?
A. I have stated the facts according to my best recollection.  Mr.
Eaker had spoken to me, and I had promised to attend to the case for
him.
Q. Did you appear in the defense of Mr. Eaker after the attachment
issued?
A. I cannot say. I don't think I did.
Q. After the attachment, did you try to prevent him from answering,
on the ground that there was no service?
A. I do not understand you.  Judge Eaker was then in court, and I
cannot state precisely what occurred between you and him in regard to
the attachment. I think you made the arrangement yourself that he
should answer, and I cannot remember that there were any suggestions
of counsel in relation to it.
Q. Did you see Mr. Kitchen in court?
A. Yes, sir. He was then in court.
Q. When Judge EBker spoke to you as you came in, hadn't an attachment already issued against him?
A. If any had issued, I have no knowledge of it.
Q. And you say MAr. Kitchen was there.  Did you hear him say anything about appearing as the next friend of the court?
A. Were I to speak from circumstances, I could not answer; I do
not know. I have no recollection of anything of the kind, and I don't
believe that Mr. Kitchen would use such an expression. 
Q. Now, Mr. Phelan, if you were the attorney of Judge Eaker, why
did you not act as his attorney?
A. When spoken to by Judge Eaker, I told him there was no service,
and he requested me to attend to the matter in court. I concluded the
only way to get at it was to appear as the friend of the court, and not
as an attorney, and suggest the failure of the service. You will recollect, Judge Jackson, that you picked me up on that point once at
Butler Court, and I knew you too well to take a course for'which you
had once, as it were, reprimanded me. I didn't want you to get me
again in a matter of that kind, and I thought the course I did
pursue was the only one you would regard as proper.  Mr. Eaker asked
my opinion as to the matter prior to this term of the court.
Q. How long before the court was it?
11
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HIGH COURT OF IMPEACHMENT.
A. I am unable to say exactly; several days.
Q. Was it more than two days before?
A. Perhaps.  I think it was more than one day.' I have been Mr.
Eaker's lawyer for a long time, and every lawyer knows when he is in
the habit of attending to cases for a client generally, it is hard to remember the precise time when a particular case is mentioned to him.
Be that as it may, Judge Eaker had spoken to me to attend to this
case.
Q. Did you tell him you would attend to it as an attorney?
A. I did not.
Q. Didn't I ask you if you entered an appearance for him?
A. I cannot say now, Judge, what you asked me.
Q. Well, what made you want to act as his attorney?
A. 1 considered that what I did was within the line of my duty, and
supposing it my privilege, as a lawyer, practicing at that bar. I was one
of the lawyers on the other side in the origin of the matter, though my
connection with the other side ceased before the application for a mandamus.
Q. Was I excited, and do you think my manner betrayed this excitement?
A. I have no earthly doubt of it, on that occasion more particularly.
Q. Which, Mfr. Phlelan, do you think it was: was I acting oppressively
in the matter, or was it that you thought you had a right to do something, and that I thought you had no right to do it, and you wanted
your way, and I wanted mine? Wasn't that what was the matter?
A. In that respect there might be a difference of opinion.
Q. Well, when there is a difference of opinion occurring in court, betwveen lawyers and the Judge, whose province is it to decide?
A. The Judge's, of course.
Q. Might not the Judge make a wrong decision honestly?  Couldn't
he be honestly mistaken, and do you think such a mistake would be a
fraud?
A. No, sir, there can be no question on the point whether an honest
mistake is a fraud.
Q. Didn't you get excited on that occasion, and talk a good deal, as
you are apt to do?
A. Annoyed is the utmost term I can use to express my feelings
at the time There was a good deal of hard feeling excited by your
course.
Q. Wasn't this hard feeling with the lawyers because they thought
certain things ought to have been done which the court thought was not
right to do?
A. I will not undertake to say what others thought.
Q. Did you and Mr. Kitchen have a consultation about the matter?
A. There was no conversation between Kitchen and myself. I can not fully understand your question.
Q. Never mind, you have answered. Did you not hear MJr. Kitchen
disclaim being an attorney in the case?
A. I did not.  It is my impression that he said nothing after the at
tachment issued.
Q. Didn't I tell Mr. Eaker, after the attachment was issued, that, if
there was no service, to make that return, and he world be discharged?
A. 1 think perhaps you did. After Mr. Eaker was already a prisoner,
he said he would make a return, and I suppose he did so. I did not
advise him about it. I think he said you offered him until the next
morning.
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HIGH COURT OF IMPEACHMENT.
Q. What was it you said about my manner while this matter was up
in court?
A. I believe I spoke of it as harsh, uncourteous, and severe in the
extreme. It would be hard to convey, in words, any idea of your
manner.
Q. Couldn't you give us a specimen of it?  Couldn't you stand out
there on the floor, now, and show the Court how I gesticulated, and
manage to convey in that way some notion of your meaning?
A. I do not wish, Judge, to perform a pantomime, and the attempt
would fail if I were to undertake it.
Q. Well, what did I do?  Did I turn a summerset?
A. You ordered me, in the harshest terms, to sit down; and your
looks spoke more than your words.
Q. Couldn't you give us one of those looks?
A. It would be impossible.
Q. We will now travel to Doniphan. Let us inquire about the Kin  ney or Kinsey case. I believe that is the case. Were you engaged in
that cause?
A. I was an attorney on the last occasion when the case was tried.
I don't know positively, but I think there were two trials, or rather, one
mistrial, in which there was a hung jury.  This is my impression;  I am
not certain; perhaps the jury hung both times.
Q. Wasn't the Circuit Attorney in that case?
A. I have no distinct recollection about it.
Q. I believe you stated that I told Mr. Fox, in this case, (or was it in
another?) that he lied, or had caused his client to lie.  What I want to
know is, did I use the word lie, or falsehood?
A. I will give you my recollection of it. You had a paper in yours
hands at the time; I suppose the paper was an answer.  You called Mr.
Fox's attention to the paper, asked him if he wrote it, and told him.
that if he did, he either lied or caused his client to lie.  That is my best
recollection of the terms used by you. You may have used the term
falsehood, as you say.
Q. Was it that time you say I told Mr. Fox to sit down?
A. That time? Well, I don't think I gave any testimony on that
point. I did on one occasion, in Ripley Court, hear you tell Mr. Fox to
sit down. Whether it was on that occasion I am not now prepared to
say.
Q. Well, now, Mr. Phelan, I will ask you whether previous to that
time there wasn't an understanding between you, Kitchen, Fox, and
others, that you would hold a meeting against me?
[Mr. Knott objected to the question, and after discussion it was withdrawn.]
Q. Mr. Phelan, we will now go to your story of what happened at the
trial of the Gibson and Dunn case. What was it you said in relation
to it?
A. I have no very distinct recollection of the case itself You had
been out-had been to dinner, I think.  When you came in, I arose,
either to address the jury, or to make some motion for the consideration of the court, in connection with the cause, when you stopped me
with the accusation of having tampered with the grand jury. I attempted to defend myself, and you told me to sit down; and afterwards
told me to go on with the case. It is not necessary, I presume, to repeat furthlier what I said.
Q. How did you characterize my manner on this occasion?
A. I have said, and I repeat, that it was harsh and very severe. You
seemed to be angry.
Q. How did you know I was angry?
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lHIGH COURT OF IMPEACHMENT.
A. I knew it from your appearance, as well as from your language.
Your face was inflamed.
Q. Isn't it usually somewhat inflamed when I speak earnestly?
A. On this occasion it was very much inflamed, and betokened anger.
Q. Couldn't you add that my cheeks were puffed out, that my eyes
were rolling, that I blowed like a porpoise?
A. I can say, at least, Judge, that you were angry. I have seen you
so a hundred times, and I could not be mistaken about it.
Q. Well, you said something about some one betraying the secrets of
the grand jury. Who did you refer to?
A. It was William Henley. It was my impression that you were presented to the grand jury for oppression in office, and that the fact had
been communicated to you by Mr. Henley. I really knew nothing about
it at that time, but afterwards I was confirmed in my opinion by the
fact that you claimed that if William Henley had told you, he had a
right to do so. I presented him to the grand jury for this act. Henley
was a member of the grand jury.
Q. What made you think that William Henley rather than any other
person had told me?
A. I knew that you boarded with Henley; that when he was sued
you befriended him; and I thought you were upon such termns with him
as would induce him to communicate the fact to you, especially if you
instructed him that he had a right to do so.
Q. How did you know that we were such particular friends?
A. I knew it from your acts. You are one of the best men to your
friends in the world. When you are a friend at all you are a strong
friend. Besides, I had heard you express feelings of friendship towards
Mr. HIenley, and heard similar expressions made by him concerning you.
Q. You say, then, that I amn a good man towards my friends?
A. Yes, sir, and a good friend you have been to me. I don't deny that.
Q. Well, how am I towards my enemies?
A. I think you are a very bad enemy.
Q. Towards whom did you ever see me act as an enemy?
[AMr. Knott objected to the question. The witness, however, answered
as follows:]
A. If I am not permitted to answer directly, I may perhaps state that
when friendly with you I had an excellent chance. You assisted me all
that you could. What you would do for one with whom you are not
upon good terms, I will not now say, if, in doing so, I would violate the
rules.
JUDGE JACKSON.  Let him go on.  His statement is made for effect.
[Some little discussion here ensued in relation to the substance of the
cross-examination, in which the witness participated, and which is here
omitted.]
Q. Have we ever had any difficulty calculated to embitter your feel ings towards me?
A. We had a little difficulty in Ripley once; also in Butler county.
You insulted me there, as I thought, and afterwards you discovered that
you were wrong, and apologized.
Q. Where was this difficulty?  Was it in court?
A. It was in court.  You wouldn't allow me to draw up a. The
facts were, that a man had sold land, and perhaps warranted the title.
Afterwards a difficulty arose in regard to the matter. The land was
attached before a Justice of the Peace for a large amount, at least largely
over the amount of the jurisdiction of the Justice of the Peace-three
or four hundred dollars I think it was-and the Justice gave judgment.
The Sheriff employed me for the defendant. He had a power of attorney
authorizing him to attend to the land in absence of the owner, and the
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HIGH COURT OF IMPEACHMENT.
man had gone away in the interval. You would not allow me to act,
because I was not employed by the man himself. I can give the names,
and state all the facts in connection with the transaction more definitely,
if it is desired.
[The witness was proceeding to make some further statement in re gard to this matter, when he was stopped.]
Q. I will ask you, Mr. Phelan, if, at this term of the Butler court, you
did not say to several persons, that if I said anything to you that was
out of the way, you would shoot me?
[A discussion as to whether the witness should answer this question
arose, and after some altercation between Judge Jackson, the witness,
and the managers, it was dropped without being answered.]
Q. You say I told you, after coming in, in the excited manner that
you describe, that you had been tampering with the grand jury. Now,
wasn't it that I told you, after you got through with that case, you should
answer for a contempt, and that you might go on with the case?
A. That is partially in accordance with my statement and recollection
of the matter.
Q. Was it ever called up after that?
A. No, sir, it was not.
Q. You said a moment ago that I had insulted you, and apologized.
Now, didn't you come to my room, say you were sorry for what you had
done and said, and promise that you would never be guilty of the like
again?
A. I have no recollection of making an apology of that character.  Mr.
Chandler came to me as a mutual friend, and stating that he was sorry
to see any hard feelings existing between us, and that he was certain it
had originated in a mistake, prevailed upon me to go to you, and when
I did so, explanations were asked and given, and our difficulty, for the
time, settled. My impressions are, however, that this had nothing to do
with the Butler court matter.
Q. Well, speaking of this Eaker matter.  Was it in reference to that
that you said you had been excited, that you were ashamed of what you
had done, and would never be guilty of the like again?
A. I have no recollection of anything of the kind.
Q. I will call your attention again to another Butler county matter.
You stated, in speaking of the adjournment of the court, owing to the
absence of the Clerk, you had suffered a great loss. To what case did
you refer?
A. To the case of Ewing & Co. vs..  I cannot now recall the names
of the other parties. There were several of them, I believe.
Q. So far fiom any chance of the suit being disposed of, at that term,
wasn't the suit wrongly brought, and were you able to get judgment
even at the next term of the court?
A. I will explain.
Q. Never mind the explanation, answer the question. Hadn't you
brought the suit wrong? and would you have been able to get judgment
at that term, even if we had had a Clerk?
A. I had leave to amend. I had brought the suit without being able
to insert the full names of the persons composing the firm of Ewing &
Co., and relied upon obtaining privilege to amend before I brought the
suit. Before court I had got them through Daniel S. Miller.
Q. Didn't you have to get alias summonses for the parties?  Had you
any service upon Jennings, Thomas Price, Lawson, and Judge Lenoir?
A. I am not prepared to state as to that fact.
Q. Had you had no chance to amend, would the cause have been ready
for trial at that term of the court?
A. I believe I would have been entitled to judgment. Of course I can
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HIGH COURT OF IMPEACHMENT.
not say what the action of the court would have been. I had not the
names at the time I had brought the suit, and knew that I would have
to amend. I had sent by Daniel Miller and got them, and I do not
know any obstacle that would have prevented me from getting judgment, if the business of the term had been gone through with as usuaL
Q. On what day did the court adjourn?
A. I think it was on Tuesday night. Perhaps it was not till Wednesday morning, and only the grand jury were discharged on Tuesday night.
I would not say that you did not on Tuesday night state that you would
wait till the next morning to see if Blount would be able to attend to
business.
Q. On Tuesday morning didn't I announce that I would keep the minutes, and that we could go on with such business as did not absolutely
require a Clerk?
A. I do not recollect any announcement of that kind.
Q. Do you recollect anything said about the papers?
A. I do not call to mind anything in particular.
Q. Did I not state that as the papers were in rather a disorderly condition, or had been badly kept, when there was no Clerk that knew anything about them, it would be impossible to do business which required
the hunting up of papers; but that I would keep the minutes, and we
would transact such business as was possible under the circumstances?
and wasn't it just after this announcement by me that Mr. Bedford
came in with an application for a rule upon the Clerk to produce the
papers in a certain cause, knowing that there was no Clerk to get the
papers?
A. It is very probable that you state the facts correctly.
Q. And didn't I then say that if that was the course that lawyers would
pursue, I could do nothing, and must adjourn the court for want of a
Clerk?
A. I think you did make some such statement.
Q. What did you say became of the papers?
A. You put them under your arm, after wrapping them up in a newspaper.
Q. Do you know what was done with them afterwards?
A. I did not observe particularly.
Q. When you stated that Mr. Blount requested me to appoint a deputy, had you seen him?
A. Not till the time I spoke of, when he was assisted in signing a paper
for that purpose.
Q. Had not you had a pretty severe bite from the "critter" yourself,
about that time?
A. I have been very often under the influence of liquor, but I was not
at that time; perhaps I was well as I am now. I may have been more
affected by liquor in the evening, but I was certainly not out of the way.
Q. Haven't you for years taken about a quart a night?  Hasn't it
taken about that quantity to do you?
A. I have been tight with you many a time, Judge, but I never in my
life drank after going to bed. I have no recollection of it, if I ever did.
Q. Do you say that you were never drunk after night?
A. I understand you.  I thought you meant if I drank after going to
bed. Yes, sir, I have occasionally got on sprees in the evening, and after
night.
Q. \Well, to return to the point, didn't I-take charge of the papers,
lock them up in the office, give the key to some one there, and tell him
what to do?
A. I do not know.
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HIGH COURT OF LMPEACHMENT.
Q. Do you know whether there were any witnesses summoned to ap pear before the grand jury?
A. As to that I cannot make any positive statement; I only know that
they were discharged while in the midst of their business, and that they
were, or at least some of them were, very indignant at your conduct.
Q. How do you know?  What manifestation was there of this?
A. I heard some of them make a motion to put you in Black river.
Q. Who made that motion?
A. I do not know that I could state positively who it was.
Q. Is there any one here who was on that grand jury?
A. Yes, sir, Mr. Puff, William Vandiver, and perhaps others, who will
know more about it than myself. I know the proposition was made.
Q. By whom?
A. I do not remember.  Several members of the grand jury, I recol lect, used very severe language in reference to your conduct.
Q. Well, I want you to state what the language was, and who used it.
[Mr. Knott objected to the question, and it was not answered.]
Q. WVasn't you and some others talking about this affair, endeavoring
to excite the people against me by remarks in connection with it, and
saying that it was about as good a matter as you could get up to break
me of my office?
SENATOR McFERREN.  Mr. President, I know that we have tied ourselves up with rules, and that it is not in order for me to raise a question
as to the pertinency of evidence in this cause. But by the leave of the
Senate I would like to make a suggestion.
I do think that, for one, I am willing to give to the respondent here
all proper latitude in the examination of witnesses.  But I understand
the rules of evidence to limit the subjects of examination to matters
relevant to the issue, and I cannot see any propriety in departing from
that course here now. I know that very great latitude must be given in
cross-examination, but I think many of the questions proposed by Judge
Jackson extend that latitude beyond all limit. The question just asked
can onlv elicit facts relating to a wholly collateral issue; and if asked
merely for the purpose of laying a foundation to impeach the witness, it
is still improper, because a witness cannot be impeached upon an irrelevant point.  Nothing can be attained by asking such questions.  In view
of the fact that this trial is a very important one, and a very costly one
to the State, if for no better reason, I would urge upon the parties conducting it that they confine themselves as strictly as possible to the
course prescribed by the plain rules of evidence.
JUDGE JACKSON.  Well, the gentleman has stated the law as I always
understood it. But he might have applied it at another point. I was
astonished yesterday while they were giving oral testimony of the record.
If they hadn't done that, I wouldn't have to run over all these little
things, trying to get a full statement of the facts upon which the seasons
for my conduct in various cases rested.  I know that this trial is expensive; and when Senators think of that, they should think of the source
of it.  I am not responsible for its starting.  Besides, I have something
at stake which is above the question of value. For the full amount of
the State debt, now over $20,000,000 I understand, I wouldn't have my
official conduct unfairly and falsely dealt with.  But I withdraw the question. If they would only introduce competent testimony, I would have
no occasion to introduce any other kind myself.
The cross-examination of the witness was then resumed.
Q. Well, Mr. Phelan, you informed us that you were an attorney.
Where do you practice?
A. In the Fifteenth Circuit. I cannot say that I am enrolled in all
16T 
HIGH COURT OF IMPEACHMENT.
the courts in that circuit. I have never taken the trouble to attend to
the matter. In fact I cannot say that I ever thought about it.
Q. Is your name enrolled as an attorney in any county?
[In answer to this question the witness went on to enumerate the
counties in which he had practiced. The names of the counties, and the
remarks made in connection with his enumeration, were lost by the
reporter, owing to the fact that two Senators just at this point seated
themselves on his table and commenced an undertoned conversation
which prevented him from hearing.]
Q. In what county was it that the Smith and Cude case was tried?
A. In Dunklin.
Q. What did you say was done with that case?
A. A change of venue was awarded to Pemiscot county.
Q. Did you say there was any agreement that the case should go to
any other county, and that this agreement was made known to the court?
A. Yes, sir. The parties and attorneys had an understanding, and
they wanted the case to go to either Scott or Bollinger county.  I think
now that it was Bollinger.
Q. On what side of the case were you?
A. I was on the side of Mr. Johnson.  I was the attorney of Smith's
representative, Mr. Johnson.
Q. Did he wish the case sent to Bollinger county?
A. I cannot say that he wished it to go there, or arnywhere, but it is
my impression that I had a consultation with him, and that he was willing for the case to go to Bollinger.
Q. Where did Mr. Cude want the case to go?
A. I cannot say. I understood from his lawyers that he was willing,
and I know they were willing for the case to be sent to Bollinger.
Q. Who were his attorneys?
A. Mr. Horner, I think, was one of them, and there were others.
Q. Did MIr. Horner consent that the case should go to Bollinger?
A. I think he consented. It is my impression that he did.
Q. Was any proposition made to take the case to New Madrid by Mr.
Horner?
A. I think not. If there was, I have no knowledge of it.
Q. Where does Mr. Johnson reside?
A. In Dyer county, Tennessee, opposite Pemiscot.
Q. Would not Pemiscot county have baen as convenient to Mr. Johnson as any other?
A. For the purpose of attending the trial alone it would have been
the most convenient to him.
Q. In the case of the State vs. Sarah Buckner, I believe, you stated
that the testimony of Grimsley was withdrawn?
A. Yes, sir. In the progress of the trial the Judge gave an intimation,
or what I took to be an intimation, that that would be the best course
for the Circuit Attorney to pursue.  He said, "Mr. Circuit Attorney, if
I were you, I would withdraw that testimony," or somethingof that kind.
As I have stated before, the Circuit Attorney did not seem to notice this
suggestion at the time. Afterwards. however, he made the motion to
withdraw the testimony, and the Judge said, "well."
Q. Was it the testimony or the witness that was withdrawn?
A. I do not know which it would be considered. The witness was
withdrawn.
Q. Was there any order given to the jury at that time not to consider
Grimsley's testimony as before them?
A. It is my impression that such an order was not given at that time,
but it was a conceded fact by the lawyers throughout the remainder of
the trial that Grimsley's testimony was not evidence before the jury.
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HIGH COURT OF IMPEACHMENT.
Q. Was any motion filed in regard to the matter?
A. I think not. I believe it was a mere verbal motion assented to by
the court, as I have stated.
Q. Who moved to instruct the jury that Grimsley's testimony was not
in evidence?
A. If any such instruction was asked or given, I am not apprised of it.
Q. Now, Mr. Phelan, wasn't it this way: while Grimsley was proceeding
with his testimony, when he came to speak of what Sarah Buckner had
told him that the daughter had told her, didn't I stop him, and wasn't
that what was excluded, and not the whole of the testimony of Grimsley?
A. I think it was not that.
Q. Did you ask any instructions to the effect that no part of Grimsley's
testimony was before the jury?
A. To the best of my recollection I did not.
Q. Did you ask any instruction to the effect that the evidence of but
one witness was not sufficient?
A. No, sir. I thought of that for the first time on the spur of the moment in the argument of the motion for a new trial. This cause was
alleged in the motion for arrest of udgment.
Q. Who made that suggestion?
A. I believe it was first made by me.
Q. Wasn't it this-when the weman's trial was talked about out of
court, and a contention arose concerning the testimony of Grimsley, and
I, hearing that the course of the court had been commented on pretty
severely, said that if what the woman's lawyers claimed to be true was
true, she must blame them for her conviction, and suggested the point
that you say was inserted in your motion for arrest ofjudgment-wasn't
it after hearing of this, that you put it in?
A. I was not indebted to you for the suggestion.
Q. Why didn't you try to keep out the testimony of Grimsley?
A. I relied upon the cross-examination to bring out such facts as I
thought would acquit the defendant. I could, perhaps, give another
reason for the course which I took, though it may not have been a good
one. Gen. Watkins had been employed, and was represented in the
case by Mr. Davis, who tried to take the lead in the case, and I was
obliged to, or did, take a little to the back ground in conducting the
defense.
Q. Well, I will ask why wasn't the instructions in relation to Grimsley's testimony asked for by the counsel of the defendant?
A. I can only answer, I doubt if we ever thought of it at that time.
It will be remembered, as I stated before, that Judge Jackson very kindly
adjourned the court to give me an opportunity of preparing the case for
action in the Supreme Court, and some twenty or thirty days intervened
from the trial to the time of fixing up the bill of exceptions. The crossexamination was what we relied upon, and
Q. Did you ever cross-examine at all?
A. No, sir. We did not.
Q. Do you say the testimony of Grimsley was withdrawn, or was it
the witness himself?
A. It was the witness, I think.
QUESTION BY A SENATOR. What was it you expected to get from the crossexamination of Grimsley?
A. We expected to prove that Susan, the daughter of the defendant,
had admitted that she killed the deceased, and that though Mrs. Buckner admitted that he had been killed, she said that Susan did it.
JUDGE JACKSON. What was it you said was done with Grimnsley's testimony in the bill of exceptions?
169 
HIGH COURT OF IMPEACHMENT.
A. I said that you would not sign unless Grimsley's testimony was incorporated.
Q. Who wrote out the testimony of Grimsley?
A. I believe you did it yourself. I think it is in the office now, in
your own handwriting.
Mr. KNOTT.  In this case, in which a change was awarded from Dunklin to Pemiscot, were the counties to which you were willing the case
should be sent situated on the same side of the swamp as Dunklin?
A. Yes, sir.
Q. In what county do the witnesses in that case reside?
A. Mostly in Dunklin county. There may have been some in Tennessee. I am not prepared to say.
Q. What are the means of conveyance from Dunklin to Pemiscot
county?  How is the traveling between the two counties usually done?
A. In going around the swamnp, all ordinary conveyances are used.
In going across the swamp, I am told they sometimes go in skiffs and
canoes.
JUDGE J ACKSON. Is there not a plank road down there that is traveled a good deal?
A. I have heard of one, but I disb6eve in it. How far it is finished,
if there is any, I am not prepared to say. I believe I would be safe in
saying there is no plank road there at all.
Mr. KNOTT.  Do you know, MIr. Phelan, how the papers in Butler
county are kept?
A. It would be hard to say that they are kept at all.
Q. Was the court apprised of the mainner in which the Clerk transacted his business?
A. Yes, sir, he was well apprised of it, and has been for two or three
years.
SENATOR WILSON.  In the bill of exceptions, as signed by the Judge,
in the case of the State vs. Sarah Buckner, was the testimony of Grimsley
set out in full with the action of the Judge in relation to said testimony?
A. No, sir. There was nothing in it about his excluding the testimony. That is in Jackson's own handwriting, and will show.
SENATOR PARSONS.  I will ask of the managers if this bill of exceptions
will be introduced?
Mr. HIARDIN.  The record is here.
TESTIMONY OF WASHINGTON CARLISLE.
WASHINGTON CARLISLE called and examined by Mr. Knott.
Q. Where do you reside, Mr. Carlisle?
A. I live in Stoddard county, Missouri.
Q. What is your occupation?
A. I am a farmer.
Q. Were you ever a member of the grand jury in Stoddard county? If
so, please state when.
A. I was a member of the grand jury at the last August term of the
Circuit Court. 
Q. Please state to the Court if you know anything about Judge Jackson visiting the grand jury in their room at that time.
A. Yes, sir, he did.
Q. On how many occasions?
A. I don't recollect, exactly. Once or twice, I think.
Q. Do you recollect his giving the grand jury any instructions upon
points of law?
A. Well, I don't know but he did, some.
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HIGH COURT OF IMPEACHMENT.
Q. State what they were-what you remenmber about them. I will
call your attention first to whatever he may have said about gambling.
A. Inl regard to that. it seems to me all a little like a dream. As well
as my memory serves me, there had been some presentments for this.
[The witness was going on with a statement of some immaterial matters, when he was stopped, and afterwards proceeded as follows:]
I think the Judge named some certain offenses which he said were
not indictable.  He said they could not be considered in law as gaming.
One was the case of a watermelon; as well as my memory serves me, it
was this: There had been a watermelon lying on a porch. It was not
yet bought.  I don't know whether the persons knew this or not.
They knew the price, and they played to see who should pay for it.
The Judge said such instances as this were not indictable; that in
cases where they merely played for something, to see who should pay
for it, it wouldn't be considered gambling because it wasn't betting.
He talked about it considerable; I couldn't pretend to say what all he
said.
Q. You will now please state the circumstances attending the other
visit, and particularly anything in relation to the circulation of a paper
among the jurors.
A. I don't recollect, and I wouldn't be positive as to which visit it
was when the paper was mentioned.  There was a paper before the
grand jury with some writing on it. I think it cited to some law. I
don't pretend to say where it came from, though I think I know the
page referred to. It also referred to some report or law book. It was
page 613, vol. ], of the Statutes.
Q. How did the Judge happen to come to the grand jury room?
What was the first thing he said or did?
A. Well, he came to the door and knocked. The door was opened,
and he stepped in, and, if I remember rightly, there was quite a silence
for a few minutes. Directly he spoke, and said he learned that there
were some persons tampering or trying to tamper with the grand jury,
and he called for the paper. The paper was looked for. At first it was
thought to be lost, but eventually, on opening the book, it was found
just where the paper spoke of the law; that is, it was at the page referred to in the paper. The Judge read the page, I think, or may be it
was only a section, and he said that law did not apply to him.  I think
he went on to state that this law referred to a Sheriff or guard, or some
officer of that kind, and that it didn't apply to judicial officers. Then
the conversation turned up whether a Judge was indictable for oppression in office.  I think may be some one of the grand jurors asked him
whether any Judge-i don't believe he  was spoken of alone-but
whether the grand jury had power to find an indictment against any
Judge. He said that a Judge was subject to indictment for any act
like another man, but he couldn't be indicted for any act done under
color of his office. He said that if he did wrong, there was a higher tribunal to take the matter to.
Q. Had you at that time under investigation a charge against the
Judge for oppression in office?
[Question objected to and waived.]
Q. You will state, then, whether the grand jury had under consideration any charge for oppression in office to which this law cited in the
paper had been supposed to refer?
A. Well, yes. There had been such a presentment made against
Judge Jackson. When the paper came in, it was before the presentment
had been made to the grand jury, but somehow we knew that the paper
referred to a charge of this kind that would be made.
171 
HIGH COURT OF IMPEACHMENT.
CROSS-EXAMINED BY JUDGE JACKSON.
Q. Do you know whether I was sent for either time I went to the
grand jury?
A. I think you was sent for but once.
Q. Now, at the time when I was not sent for, when I came in, didn't
I say that I came to inquire if any one had been tampering with the
grand jury?
A. I think perhaps that was the way of it.
Q. Didn't I ask if there was not such a paper before the grand jury,
saying that I had learned there was, and that if there was, the man
that sent it should be indicted?
A. Yes, sir. It was something like that.
Q. Did the paper come into the grand jury through the Circuit
Attorney?
A. No, sir, I think not.
Q. Did one of the grand jury bring it in?
A. I don't think I know. There was considerable chat about that-as
to how the paper got there; and it was my understanding that we all
wanted to find who it was that brought it there, or sent it.
Q0 Were you one of the jury in the case of the State vs. Sarah
Buckner?
A. No, sir. I was never but once or twice on a petit jury in your court.
[The cross-examination here ended, and the managers consulted
a few minutes, at the conclusion of which consultation the witness was
recalled by Judge Jackson.]
Q. You stated that I told you in the grand jury room that the section
of law to which you had been referred by this paper was not for a Judge
-that you could not indict a Judge for an official act.  Now, Mr. Carlisle, don't you recollect that I made a distinction between judicial
officers and officers of trust, and that I pointed out the distinction
between a County Court Judge and a Circuit Court Judge?
A. I won't be positive, but I think you did.
TESTIMONY OF LEMUEL KITTRELL
LEMUEL KITTRELL called and examined by Mr. Knott.
Q. Where do you reside?
A. I reside in Doniphan, Ripley county, Missouri.
Q. Were you present at the Circuit Court in April, 1858, pending the
trial of the case of James Moore vs. John Eldridge, administrator of
the estate of William Parker?
A. Yes, sir. I was a witness in that case.
Q. Did you hear Judge Jackson express any opinion in relation to
the merits of the cause?  Did you hear him say how it should go, or
who he thought would succeed in the trial?
A. During the court there was a good deal of contention. Judge
Jackson made some observation, and Moore told me that he supposed
he was bound to lose the case, as Jackson had already decided it against
him. There was an instrument of writing in the case, and it was to
testify about that instrument of writing that I was a witness. It was
considered by some that this writing in one part contradicted another
part, and the contention was as to which side the paper would support.
In a conversation which happened before court, Judge Jackson decided
it against Moore.
Q. Were you present during that conversation? If so, state what
you heard the Judge say-how the conversation came up.
172 
HIGHI COURT OF IMPEACHMENT.
A. Well, there had been a partnership of Moore and Parker.  This
instrument of writing was an agreement between them, and it read that
Parker on his part would pay James Moore a certain suim of money a
month. The question was whether this meant that Parker must pay
this himself, or rather whether his estate should pay it, or the firm of
Moore and Parker pay it. The matter came up in the conversation,
and Judge Jackson said that the firm must pay it.  le said the firm
ought to pay Moore, which would make Moore pay half himself, as he
was a member of the firm of Parker and Moore. That was the opinion
expressed by the Judge.
Q. Did you say that you were a witness?
A. Yes, sir.  I was a witness on this instrument to prove whether it
was a genuine article of agreement.
Q. Do you remember any difficulty arising after the trial about your
evidence?
A. Yes, sir. I was in court after the trial was over. The parties
disagreed about my testimony concerning this instrument of writing.
I was called in to say what I had said about it.
Q. You will please state the substance of what occurred when you
were called in, as well as you recollect it.
A. Well, there was a difference about the instrument. The date of
the instrument was blotted.  I don't think in my testimony I had said
anything about it. After the trial was concluded, they called me in to
know if I had said anything about the defect or blot on the paper.  I
said that I did not think that I had testified anything about that, but I
believed the instrument was just as I had always seen it. If I did say
anything during the trial it was just that.
Q. Do you know what they were doing when you were called in?
A. I understood that they were endeavoring to get up a bill of exceptions, and that the part of my testimony to which they called my
attention was whether I had said that the date of the instrument had
been altered. I replied that that instrument was as I had always seen it.
I had seen it for a long time on the books. Parker had died very suddenly, and there was a contention between Moore and the administrator of Parker's estate. Moore had several witnesses to prove what he
wanted to establish about the instrument.
Q. Did you say when you were called back that you had made any
statement, upon your examination during the trial of the cause, in reference to the alteration of the instrument of writing?
A. I told them that to the best of my recollection I had not.
Q. Did you see the bill of exceptions after it was drawn up?
A. No, sir. I have no recollection of seeing it. I may have seen it;
but I am pretty certain that I didn't read it, if I did see it.
Q. When was this conversation when the Judge expressed an opinion as to who should pay?
A. I think it was the day before the trial. If I recollect rightly a
jury had been called the evening before the trial, and this conversation
happened either at noon or at night.
CROSS-EXAMINED BY JUDGE JACKSON.
Q. Hadn't that case been in a different shape, and been tried once or
twice before the trial at this term of the court that you speak of?
A. Yes, sir. I think so.
Q. Didn't the question come up in the former trials whether the
money should be paid out of the firm or out of the estate?
A. I suppose it did.
Q. Wasn't I present when the case was tried in the County Court?
173 
HIGH COURT OF IMPEACHMENT.
A. I don't recollect.
Q. Did Mfr. Mloore ask my opinion in regard to the matter?
A. I can't say.  I don't recollect hearing him ask it.
Q. Hadn't there been a suit on one view of the paper in which
there was a non-suit? and then wasn't there two or three views or ways
in which the paper could be construed?
A. There was a good deal of difference about the paper.
Q. Wasn't there two suits in which it was involved in the Circuit and
County Courts?
A. They were, I know, lawing about it a good deal.
Q. Well, when the matter came up one way, don't you recollect that
there was a non-suit, and when it came up on another view, there was
an appeal taken and the appeal dismissed?
A. It is my opinion there was a non-suit once, and then they com menced anew. I don't recollect exactly how it was.
Q. Wasn't that instrument talked about all over town. Wasn't it the
common talk, and the people generally had two ways of construing the
instrument?
A. Yes, sir. It was talked about pretty generally, and a good many
thought it ought to go one way, while others thought it ought to go
the other.
Q. Didn't I say that neither party was right, and that there was a
third way of construing it?
A. No, Judge, there couldn't be but two ways.
Q. I know most persons thought so; but I believe the instrument
would show that I was right. What did you say the difference was about
when you were called back after the trial?
A. I suppose I was called back to say what I had stated about the instrument-whether I had said so and so.  That was nmy understanding
of it at least.
Q. What did you say?
A. I said that I didn't think I had said anything about it before
when I was giving in my testimony, and that the instrument was just
as I had always seen it.
Q. But wasn't there a controversy whether there was a defect in the
instrument which couldn't be perceived without examining it?
A. Well, as I said before, there was a blot on the date of the paper.
I think the contention was about what I had said.
Q. Will you state whether the instrument was in evidence before the
jury?
A. Well, as I said before, I was a witness there to testify about the instrument.
Q. That is not what I want. Wasn't this instrument before the
jury?
A. Yes, sir. If I recollect aright it was handed around amongst the
jurors. 
Q. Didn't there exist on the instrument itself a blot or erasure, a defect in the writing, which you would have to examine before you would
see what it was?
A. Yes, sir. It was.
Q. Wasn't it matter of inspection-an obscuration of the date that
could only be known by looking at it? and wasn't that what we were
contending about?
A. I believe that was it.
Mr. IHARDI.  Where was this conversation that you speak of before
the trial?
A. It was in the town of Doniphan, on the wood-pile before my yard.
There were five or six of the neighbors in company, and we were all
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HIGH COURT OF IMPEACHMENT.
sitting down talking, when the Judge came up. We were disputing
whether the verdict would be against Moore. They were all talking
about this when he came up, and not thinking there was anything
wrong about it, I believe I asked the Judge his opinion.
JUDGE JACKSON.  Had not I given an opinion upon that question when
the case was up before? Wasn't the same question involved in the
other trials?
[Question objected to and withdrawn.]
JUDGE JACKSON.  Did you hear me say anything about which way I
thought the case ought to go? Wasn't it simply an expression of nay
opinion about the paper?
A. Yes, sir. That was it. We asked you who should pay,-Moore or
the firm? Your opinion was that the firm should pay.
Q. Wasn't my attention directed solely to that piece of writing?
A. I believe that was what we asked you about.
Q. Were there not other matters involved in the suit?
A. Yes, sir.  I supposed there were, though that was the principal
matter. You took a different view of the paper from what I did.
Mr. KNOTT. Did any person coincide with the view that the Judge
took of the matter?
A. Well, we were arguing about it some. I think one or two said
they believed the Judge was right.
JUDGE JACKSOY. Who beside yourself was in this company?
A. I don't recollect who all was there.
Q. Was Mr. Arthur present?
A. I don't recollect. I believe he was.
TESTIMONY OF DAVID M. FOX.
DAVID M. Fox called and examined by Mr. Knott.
Q. Where do you reside, MZr. Fox?
A. I reside in Fredericktown, Madison county, Missouri.
Q. What is your profession?
A. I am an attorney at law.
Q. Have you been practicing in the Fifteenth Judicial Circuit?
A. Yes, sir. I have practiced in some counties in that Circuit.
Q. Do you practice in Wayne county?
A. Yes, sir.
Q. Please state if you were present at the September term of the
Wayne Circuit Court in 1858.
A. Yes, sir.
Q. Were you engaged in any manner in the cause then pending of
Limbarger vs. Powers?
A. Yes, sir. I was counsel in that case. There was another case of
Powers vs. Limbarger. Perhaps I was in both cases. I was counsel for
Limbarger.
Q. Please state to the Court what was done in this case.
A. There was a change of venue awarded. I believe the application
was in my handwriting. The cause alleged was prejudice against the
plaintiff
Q. Please state to the Court what occurred on the presentation of the
petition for change of venue?
A. The change was granted, and the case sent to Mississippi county.
Q. How far is it from the county seat of Wayne (Greenville) to
Charleston, the county seat of Mississippi?
A. I don't know the exact distance. I think it would be a hundred
miles or more.
175 
HIIrGH CO')URT OF IMPEACHMENT.
Q. How many counties of the Tenth Circuit intervene between Wayne
and Mississippi?
A. By the usually traveled route, Bollingeg Cape Girardeau, and Scott
counties intervene. The route through these counties forms a kind
of angle.
Q. Can you describe the relative position of these counties?
A. I would like to examine the map. [After an examination,] I think
Greenville is nearly north of Charleston. The direct road at some
seasons of the year is somewhat swampy, and it is necessary to go
through the counties I have named, at such times.
Q. At what seasons of the year is this direct road swampy?
A. Generally about the time of the spring terms of the courts.
Q. At such times is any additional travel necessary?
A. Yes, sir. I suppose so.
Q. How far is the county seat of Madison from Greenville?
A. I think it is called forty miles.
Q. What are the relative positions of Madison and Wayne counties?
A. They are contiguous; Madison lies north of Wayne.
Q. Is MIadisonin a different circuit?
A. Yes, sir. Madison is in Judge Hough's circuit.
Q. How far from the county seat of Wayne to the county seat of Iron?
A. The county seats of Madison and Iron are equidistant from the
county seat of Wayne. Forty miles I think it is.
Q. In what circuit is Iron county.
A. Judge Stone presides there. I believe the law does not include it
in either the Fifteenth or Tenth.
Q. How far is the county seat of Bollinger county from Greenville?
A. About the same distance as Fredericktown-forty or forty-five
miles.
Q. Whereabouts do the parties in this suit of Limbarger vs. Powers
reside?
A. At the time the petition for a change of venue was presented, they
resided about half way between Greenville and Fredericktown, about
twenty-one miles each way. The parties lived in sight of each other,
and were formerly partners in trade. The witnesses lived in the
neighborhood of the parties generally.
Q. Who was engaged with you in the cause?
A. I was, sir, the senior counsel.  I had as my junior Mr. Phillip
Pipkin.
Q. Who was on the other side?
A. My recollection is that Messrs. White and Bedford were counsel
for Mr. Powers.
Q. Was there any conference or agreement, as to what would be a
suitable county for the trial of the cause, among the attorneys?
A. MAy impression is that there had been such a conference
Q. What counties were fixed upon?
A. I think there was an agreement that the case should go to either
Iron, Madison, Bollinger, or Cape Girardeau.
Q. Why were these counties selected?
A. They were selected because of their convenience to the parties
concerned, and to the witnesses.
Q. How would it have suited the convenience of counsel in the cause
to try the case in Mississippi?
A. As to myself I have never been in Mississippi county at court. I
live in Madison. Either of the other counties would have suited me
better. Mr. Pipkin lives in Iron county, at Arcadia. It would have
been much more convenient to him to attend court in any county named
176 
HIGH COURT OF IMPEACHMENT.
than in Mississippi.  Mr. White lives in Greenville;  Mr. Bedford in
Bloomfield.
Q. When the award was made to Mississippi county, what occurred
in court?
A. If you will merely lead the way, by directing my attention to any
particular fact, I can perhaps tell you better.
Q. Was anything said by counsel to the court, in relation to the in  convenience to which the parties and attorneys would be subjected by
sending the case to Mississippi county?
A. Mr. Pipkin said something in regard to it.  He remarked that by
sending the case to Mississippi he would be thrown out of the case
entirely, as it would be impossible for him to attend there. I couldn't
quote the reply of the Judge.
Q. Did you make any representation of the facts to the court?
A. Yes, sir. I made this remark: when I presented the petition,
and a change was awarded to Mississippi, I said that it would be incon venient to attend down there. The Judge did not make any reply im mediatly that I recollect, but turned to the law, and after reading it,
said that he found that the party presenting a petition for a change of
venue in any case had no right to designate the county to which it
should be sent; and he then said, "if I did not think you would consider
it a personal matter, I would fine you for a contempt of court."
Q. What was your manner in addressing the court upon the subject?
A. It was in the same style of coolness, candor, and respectful ad dclress, in which I am now speaking.
Q. What was the manner of the Judge in his replies to yourself and
Mr. Pipkin?
A. It was unjudicial, unparliamentary.  That was the idea I formed
of it.
SEN\ATOR SCOTT. Tell us what he said and did, and leave us to judge
of whether it was unjudicial and unparliamentary.
A. I couldn't repeat it verbatim. I only quote from memory. His
language towards me was, as nearly as I can state it, that if he didn't
think I would look upon it as a personal matter, he would fine me for
contempt of court.  Towards Mr. Pipkin I cannot state exactly his
demeanor.  When he was told that sending the case to Mississippi
county would throw Mr. Pipkin out of the case, he said he didn't care
about that, or something of the kind. I suggested to the court that
either of the other counties named would be more convenient to all the
parties, and in answer to that he used the expression I have quoted.
Q. You can state whether his manner indicated any feeling in regard
to the matter.
A. Yes, sir. His manner was angry, tumultuous, and stormy-that
is, if I am to judge of those feelings.
Q. Was it represented to the court that counsel had consulted in
regard to the matter, and wished the case sent to some other county?
A. As to that I cannot speak from the card. I think Mr. Betdford
did say something about it, but I would not be positive.
On motion of SENATOR PARSONS, the Court adjourned.
12
177 
HIGH COURT OF IMPEACHMENT.
EVENING SESSION.
SATURDAY, June ]11, 1859.
The Court met pursuant to adjournment
The managers and respondent attended.
On motion of SENATOR GULLETT, leave of absence was granted to Senators Thompson and Wood until Monday.
On motion of SENATORa CHURCHILL, leave of absence was granted to
Senator Coleman until Monday.
A call of the Senate was then ordered, and the following Senators
noted as being absent without leave: Messrs. HIedgpeth, Johnson, Jones,
Newland, Rains, Scott, Watkins, andl Wright.
Sick-Mr. Halliburton.
On motion of SENATOR MCFEaRAR, further proceedings under the call
were dispensed with.
The examination of DAvID M. Fox was then resumed.
Q. Mr. Fox, you will state, if you please, whether you were at the
Butler Circuit Court in May, 1858?
A. Iwas.
Q. Were you in court during the trial of the case of Gibson vs. Dunn?
A. I was, sir.
Q. Did you see Mr. Phelan at that court?
A. I saw him during the trial.
Q. Please state what occurred between the court and Mr. Phelan at
any stage of that case.
A. In what particular?
Q. Any irregularity or unusual conduct of either party that you may
have noticed.
A. Upon the trial of that cause, I heard Judge Jackson tell Mr.
Phelan that he was in contempt of court. The court had adjourned for
dinner. Immediately after dinner, when the Judge came in, he told
Mr. Phelan that he was in contempt of court, saying that he had been
tampering with the grand jury, and endeavoring to injure him.
Mr. Phelan seemed somewhat excited when the charge was made, and
I think he said he would see him again, or that he would settle the
matter elsewhere.
Q. Did Mr. Phelan offer to vindicate himself then?
A. That was my impression.
Q. What was the Judge's conduct towards him?
A. I thought it was rather out of place,-out of the usual order.
I never saw a Judge conduct himself in such a manner before.
Q. When Mr. Phelan attempted to vindicate himself, what did the
Judge say to him?
A. He told him to hush up, or to shut his mouth.  It was some ex pression of that kind. I do not undertake to give his precise language.
Q. What was the charge alleged against Mr. Phelan?
A. A charge of tampering with the grand jury to interfere with him,
the Judge.
Q. Do you attend Ripley Circuit Court?
A. I have attended there.
Q. Were you in Ripley Circuit Court, at the October term, 1857?
A. I think I was.
Q. Judge Jackson is charged with certain irregular conduct towards
you at that court. You will please state the facts, if any such thing
occurred.
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HIIGH COURT OF IMPEACHMENT.
A. To what case do you refer?
Q. I don't know what case it was, but I refer to a charge of lying:
alleged against you.
A. There was a case pending in which I think the firm of Lacey &
Gale was plaintiff If I recollect rightly, the suit was brought against
Ponder & Co.-Ponder & Barrendon-or something of that kind; I
don't recollect the style of the firm. The suit was founded on a note.
MNr. Ponder employed me.  I filed an answer, denying the execution of
the note as far as Ponder was concerned,-a regular plea of non est fac   turn, so far as he was concerned in the note.  A demurrer or motion to,
strike out was filed by the other party.  This motion or demurrer was
sustained. On motion I obtained leave to amend. My client lives 7, 8,
10, or 15 miles from the place, and was not at court. In the meantime
I filed an amended answer, to which I made affidavit myself. The
purport of the affidavit was that the matters and things set forth in the
amended answer were true to the best of my knowledge, as I under  stood them from my client. The court examined this paper and asked
me the question, "is this your writing?"  There was no necessity for
this question, for he was perfectly familiar with my handwriting. When
I replied that I believed it was, or something of that kind, he said,,
"you must either have sworn a lie yourself, or caused your client to
swear a lie." He further observed that the grand jury was in session,
(pointing with his finger towards the grand jury room.) I was angry
enough. In my opinion it was intended as an insult.
Q. Was this in open court?
A. Yes, sir. It was in open court. He was on the bench, and I
suppose it would be fair to say that he was acting officially.
Q. Are you a practicing lawyer at that bar?
A. I am.
Q. At the time this conversation occurred, did you say anything to
provoke this language from the court?
A. I had not been saying anything. I do not remember that I was
doing anything at the time.  My demeanor towards the court then, and
to all courts at all times, so far as I know, was respectful.
Q. Were you at the April term, A. D. 1858, of the Ripley CircuitCourt?
A. I was.
Q. Were you in court during the trial of William Kinsey on an indict ment for grand larceny?
A. Yes, sir, I was.
Q. You will please relate what occurred pending the trial of that
cause in regard to taking down the testimony of the witnesses.
A. There had been another trial at the same term in which  the jury
hung, and at the second trial we took every precaution to prepare the
case for an appeal. Almost the whole bar volunteered for the defense,
Mr. Tyrell among others, and wishing to take the precaution of hawing
the whole testimony, we assigned to him, (I am not positive, but I think
it was Mr. Tyrell,) the work of reducing the testimony to writing.
Upon propounding a question, we asked for time to reduce the answer
to writing. We wished the witness to stop for this purpose, but the
court would not give us the time, and he then and there observed that
the witness was not there for the purpose of having his testimony written down by lawyers, but that he was there for the benefit of court and
jury. We were not able to take it down as reporters do, and because
we were not so able, we could not accomplish our purpose of reducing
the whole of the testimony to writing, owing to the refusal of the court
to allow time for that purpose.
Q. Was it customary in the courts of that country to keep minutes of
the depositions of witnesses in that way?
179-, 
HIGH COURT OF IMIPEACHMENT.
A. It has been so in every court I have practiced in.
Q. Was there any interruption of counsel by the court during this trial?
A. Yes, sir. Upon this second trial of the Kinsey case, Mr. Joseph
White volunteered to prosecute. The evidence in the case was altogether circumstantial. In my argument for the defense, before the jury,
I took occasion to comment or reflect upon Joseph. It had leaked out
during the progress of the trial that this Joseph had volunteered his
services in the prosecution. In my remarks I played upon the name
of Joseph some. I said that I supposed that he was named after Joseph
of old, and that out of respect for his great prototype, who was himself
the victim of circumstantial evidence, he ought not to undertake to
forward the perpetration of a similar wrong. I carried this allusion to
some extent; spoke of the fact that the father of Joseph the prototype,
when he heard that his son was in Egypt, could not believe that it was
true; and in some manner which I am not now able to detail, I instituted a comparison between the father of the prototype Joseph and the
prosecutor in the case, saying that as the one could not believe in the
existence of his son, so the other, when he heard of his hog, would not
believe it to be the same. In my further remarks I spoke in an ironical
strain of a grand inquisitorial body sitting in judgment upon this hog
matter, and in this connection I did refer to Judge Jackson. Before
this, however, I should have observed that my time had been limited to
an hour and forty-five minutes.  When I came to speak, in the ironical
strain that I have mentioned, of the grand inquisitorial body, the
Judge interrupted me and asked me to explain myself, and say whether
I meant him. I replied that if he would not discount or offset my time,
I would not explain.  Afterward,-I don't know what gave rise to it,he abruptly told me to sit down. Whether this grew out of what I had
been saying in my speech I will not undertake to say, but he did order
me to sit down.  I then told the jury to see what a poor chance my un fortunate client had, and that my only dependence for getting justice
was in them, and comnplied with the order of the court by takirrg my
seat. And, gentlemen, I believe it was the best speech I ever made in
my life.
CROSS-EXAMINED BY JUDGE JACKSON.
Q. Wasn't your ironical allusion, that you have just been speaking
of, to a person in authority, whom you described as trying to get a conviction against your client? and was it not there that I interrupted you
and asked you if you meant me? and did I not have to repeat my demand, in order to know if you meant me, before you stopped? Didn't you
tell me that it was me? and wasn't it then that I told you to sit down?
A. I don't recollect that it occurred in that way.
Q. Hlave you a pretty good memory?
A. In some respects my memory is very good.  It is not so good in retaining dates and names, bat ordinarily I may speak ofmy memory  as
good.
Q. Couldn't you repeat that fine speech for us?
A. It would not be interesting.
Q. That depends upon your auditory. But let me inquire about what
you said concerning my pointing to the grand jury. Didn't the affidavit attached to that amended answer contradict the answer itself?
A. I can't say that it did.
Q. Didn't you have it in your head to get your client indicted for
perjury, and then come in to defend him from the charge?
A. I had nothing of the kind in my head or heart.
Q. Didn't you testify concerning this matter once before?
180 
HIGH COURT OF IMPEACHMENT.
A. Yes, sir; before the Judiciary Committee of the House last
winter.
Q. Didn't you then say that Lacey and Sturdivant was the firm that
brought the suit, and not Lacey and Gale?
A. If so, I was not positive then as to the style of the firm, nor am I
now. I think I stated it then as now, however.
Q. If your memory is defective on that point, would it not be very
safe to suppose that it was Qqually defective in other respects?
A. It would show that my memory was not clear upon that point, and
I leave others to draw such inferences as they please. As to the style
of the firm, or the exact turning of a phrase, a man might have a poor
recollection and yet have a very clear and distinct one touching the
the idea to be conveyed.
SENATOR PARsONS. I would inquire of the managers if the testimony
taken before the Judiciary Committee was subscribed by the witnesses?
Mr. HARDIN. It was.
JUDGE JACKSON.  You admit then, Mr. Fox, that you are apt to make
mistakes about words?
A. Yes, sir. All men are fallible in that respect.
Q, Well, now then, did I really use the word lie or falsehood, in
speaking of your contradictory answer and affidavit?
A. In speaking of what you call my contradictory answer and affidavit, it is my impression that you used the word lie. If you did not, it
was a harsh word conveying that idea.
Q. Is it your impression from the fact itself, or from the recollection
of the accusation?
A. I have stated my best recollection.
Q. Well, now about this Joseph matter. Wasn't you intoxicated
when you were going through that long rigmarole?
A. I won't answer that question.  He sometimes gets drunk himself.
I will say that I was not drunk then.
Q. Well, now, Mr. Fox, what was it you said I stated to Mr. Phelan at
Butler court?  Didn't I tell Mir. Phelan he was in or had been in contempt, and must answer? and didn't he then insist upon going into that
matter immediately?
A. I don't recollect that occurrence differently from my statement
on examination in chief I state things from memory.
Q. But you say that your memory is bad sometimes?
A. Whether it is bad or good, I set up that in answer.
Q. But it does not answer my question.
A. I have given a truthful statement of the occurrence. If it does
not suit you, you can seek another statement elsewhere. Like every
other true lawyer, I adopt the maxim, ".fiat justita, ruat celum."
SENATOR SCOTT objected to the style of the witness' answer. 
Q. Were you and Mr. Pipkin the attorneys on both sides in the case
of Limbarger vs. Powers?
A. We were on the same side of one case. In the other, a change of
venue was not taken. On account of a want of the completion of the
pleadings a change was not granted.
Q. Is there not a great deal of business at the Madison Circuit Court?
A. The docket is nearly clear now.
Q. Wasn't the docket crowded at that time, owing to the time that
the Phillips trial took?
A. Yes, sir. The docket was crowded then.
Q. Was it not the same way at Bollinger court?
A. I understand so, on account of changes of venue from the Fifteenth Judicial Circuit.
181 
lHIGH COURT OF IMPEACMiMENT.
Q. Shouldn't the advantages for procuring a trial as early as possible
be considered by a Judge in awarding changes of venue?
A. That is argumentative, sir.
Q. Where does MIr. Bedford reside?
A. At Bloomfield.
Q. How far is it from Bloomfield to Greenville?
A. Forty or forty-five miles.
Q. Wouldn't it be as advantageous for Mr. Bedford to have the case
sent to Mississippi as to Bollinger or Madison?
A. I decline making an argument for you, sir.
Q. I understood you to say that the distance from Greenville to
Charleston was about one hundred miles. How would you go to make
that distance out of it?
A. I would go the usually traveled route.
Q. You spoke this morning of representations made to the court in
relation to the inconvenience resulting from sending the case to Mississippi county. Were not those representations made after the order for
the change was entered of record?
A. I don't recollect that they were. I think that you looked at the
law at the time, and stated substantially that it was adverse to allowing
lawyers to designate the place to which the case should be sent.
Q. You said the other party as well as yourself made representations
concerning where the case should go. Who was the other party?
A. I think that Mr. Bedford spoke to you in relation to the matter,
and he was on the other side.
Q. How far is it to the county seat of St. Francois county from
Greenville?
A. I do not know that I could give you the exact distance.
Q. How far is it from Farmington to where these parties reside-Limbarger and Powers?
A. I would estimate the distance at about thirty-eight miles.
Q. How far is it from Limbarger's to Ironton?
A. It is about the same distance.
Q. How far would Mr. Bedford have to come, if the case were to be
tried at either Farmington or Ironton?
A. I couldn't tell you, sir.
Mir. KNOTT.  What was Mr. Phelan's manner before the assault on
him about tampering with the grand jury?
JUDGE JAcKsoN. That is not a proper question. I committed no assault upon him.
Mr. KNOTT. We will change the word assault to charge.
A. Immediately before, it was reserved. The relations existing between him and Judge Jackson were such as to make impossible any
cordiality between them.  No lawyer could treat a Judge very kindly
who was subjected to such treatment as Mr. Phelan received from
Judge Jackson.
Q. I mean to ask if Mr. Phelan's deportment towards the court was
respectful immediately before the charge made in open court against
him?
A. I think it was. I don't think he was in contempt from anything
that passed before. I could not have inferred that he had been in contempt.
TESTIMONY OF JOSEPH J. MILLER.
JOSEPH J. MIILLER called and examnined by Mr. Knott.
Q. Mr. Miller, what is your profession?
182 
HIGH COURT OF IMPEACHMENT.
A. I sometimes practice law. I am a lawyer by profession; at least I
have license.
Q. Were you at the November term, 1858, of the Stoddard Circuit
Court?
A. Yes, sir. I was.
Q. Do you know who was counsel for David G. Hicks on the trial of
an indictment then pending against him for an assault with intent to
kill?
A. I was counsel for him.
Q. Who was acting as Circuit Attorney when that case came up in
court?
A. I don't know as any person was acting as Circuit Attorney in con nection with that case.
Q. What was done with the case?
A. I filed a motion to quash.  It was on the fifth or sixth day of the
term. I can't say either that I filed the motion. I went into court and
observed that I wished to file the motion. The Judge asked me what
was the matter with the indictment. I told him the words "on pur pose" were left out. He just turned to the docket and observed to the
Clerk that that indictment was quashed.
Q. You didn't file your motion, then?
A. No, sir. I suppose it was a mere verbal motion to the court to
quash.
Q. Who was acting as Circuit Attorney at that term of the court?
A. David G. Hicks.
Q. Was any person appointed to represent the State in the matter of
the indictment pending against Hicks?
A. Not to my knowledge.
Q. If any person had been appointed would you have known it?
A. Yes, sir. Nobody was appointed, I think. Allow me to state further, that, on the first day of court, there was an indictment against
Lewis W. Chandler.  At that time a young lawyer was appointed to defend. Whether he could have been acting as Circuit Attorney I won't
say. If he was, I did not know it.
Q. Was he called into court when you made the motion to quash?
A. No, sir. No one was called.
Q. Do you know the nature of Judge Jackson's feelings towards David
Hicks?
A. They are good, I believe.
JUDGE JAcKsON.  Yes, sir.  I wish it understood that I am particularly
partial to David Hicks.
Mr. KNOTT. Were you at the August term of the Stoddard Circuit
Court?
A. Yes, sir.
Q. Was you in court when the case of Orson Bartlett was called?
A. I think I was. 
Q. Did you hear Judge Jackson give the jury any instructions in that
case?
A. Yes, sir. I heard the Judge instruct the jury orally. It was an
indictment for gamining. One of the attorneys in the case asked the court
to give the jury some instructions. He then told the jury that playing
for whisky was not an offense. lie said that it was necessary to stake
property against property; and he went on at some length to show that
playing for whisky and the like of that was simply an inducement to
show who should beat, and that it was similar to fairs and schools, and
so on. He said the jury might find a special verdict, and it was the only
verdict they could find from the testimony.
Q. Who was Bartlett's counsel?
183 
HIGH COURT OF IMPEACHMENT.
A. I think it was Mr. Kitchen, and others; perhaps Mr. Tyrell and
Mr. Phelan.
SENATOR PARSONS. Who drew the indictment against Hicks?
A. I think Mr. Hicks' name was signed as Circuit Attorney, pro tern.
Q. What were the alleged defects of the indictment?
A. The words "on purpose" were left out.  That is all that I recollect.
CROSS-EXAMINED BY JUDGE JACKSON.
Q. You say that you prepared a motion to quash, but did not file it.
What was the reason you did not file it?
A. Hicks told me to let the motion lie over. I told Mr. Hicks on
Friday that I would file a motion, and he then told me to let it lie over.
After I had prepared the motion, I came into court and observed that I
wished to file it. You asked me if it was similar to the case of the State
against others that had been quashed, and I replied that it was precisely
similar.
Q. Didn't I ask you if the same defect existed in this indictment that
I had quashed others for at the same term of the court?
A. Yes, sir, I think you did; and when I said yes, you remarked that
it ought to be quashed. You then observed that the indictment would
be quashed.
Q. If the indictment was quashed for reasons filed, would not the record show that?
A. Yes, sir; if I understand what a record is, I suppose it would.  Mr.
Hicks spoke himself, and said he didn't want it done.
Q. How came it to be done, then?
A. I drew a motion.
Q. How did your motion come not to be filed?
A. Well, I remarked that I wished to file a motion, and the court
never said whether J should file it or not. So it wasn't filed.
Q. Was it then that I asked the question about the indictment?
A. Yes, sir. You just asked that question, and then told the Clerk
that the indictment was quashed.
Q. Do you know whether the grand jury had found another bill
against Hicks?
A. I don't know anything about that.
Q. Wasn't the remarks that I made in the Orson 3Bartlett case more
to the attorneys than to the jury?
A. Well, sir, I understood from the request of the attorneys, that
your address was to the jury.
Q. Didn't I tell the jury that they might find a special verdict-that,
from the testimony, they could only find a special verdict-and if they
found a general verdict of guilty or not guilty, I would have to set it
aside?
A. Yes, sir; I think you did.
Q. Didn't I tell the Circuit Attorney that if he wished to test the question, that the jury might find a special verdict-I would then declare
the law, and he could then take the case up?
Mr. KNOTT. When you were told by Mr. Hicks that he wanted your
motion to lie over, what reason did he give?
A. He didn't say what his reason was. I only drew the inference that
he wanted the grand jury to pass over before it was done.
Q. Had the grand jury been discharged when you made the motion
to quash?
A. Yes, sir; it had, I think.
On motion of SENATOR WILSON, the Court adjourned.
184 
HIGH COURT OF IMPEACHMENT.
SEVENTH DAY.
MONDAY, June 13,1859.
The Court met pursuant to adjournment, and was opened by proclamation.
The managers and respondent attended.
On motion of SENATOR GOODLETT, leave of absence was granted to Senator Wright.
On motion of SENATOR CHURCHILL, it was
Resolved, That the President of the Senate is hereby authorized to employ any
assistance that he may deem proper for the present reporter of the Senate.
On the adoption of this resolution the Senators present voted as follows:
AYrs-Messrs. Brown, Byrne, Churchill, Fox, Goodlett, HIalliburton, iarris,
Hedgpeth, Horner, Hyer, Jones, McFarland, McFerran, McIlvaine, Morris, Newland, O'Neil, Parsons, Peyton, Rains, Robinson, and Watkins-22.
NoEs-Messrs. Frazier, Gullett, Scott, Vernon, and Wilson-5.
Absent-Messrs. Johnson and Richardson.
Absent on leave-Messrs. Coleman, Thompson, Wood, and Wright.
The examination of witnesses for the State was then resumed.
TESTIMONY OF HAMILTON SCOTT.
HAMILTON SCOTT called and examined by Mr. Knott.
Q. State, Mr. Scott, whether you were a member of the grand jury at
the Butler Circuit Court, November term, 1857.
A. Yes, sir; I was.
Q. On what day were you discharged?
A. I think it was on Tuesday evening.
Q. Was there any unfinished business when you was discharged?
A. There was business that we did not get through with.
Q. State whether this fact was communicated to the Judge, if you know.
A. I think Mr. Vandiver told the Judge that we had more business
on hand, and the Judge said there was no Clerk; and the grand jury was
discharged that evening.
Q. Were you a member of the grand jury at the next term?
A. I was. 
Q. Do you know whether the Judge visited the grand jury that term,
during their retirement?
A. I know of the Judge being called in before the grand jury.
Q. State whether he gave any instructions as to offenses you were
then inquiring into.
A. I don't recollect exactly. I think Mr. Henley was brought before
the grand jury for revealing the secrets of the grand jury. The Judge
said, if Mfr. Henley had told him, it was not an offense; that he had a
right to do so.
Q. Was this in connection with anything for which the Judge had
been presented?
JUDGE JACKSON objected to the question, and it was withdrawn.
185 
HIGH COURT OF IMPEACHMENT.
CROSS-EXAMINED BY JUDGE JACKSON.
Q. Are you positive about the time that the grand jury was discharged?
Was it Tuesday night or Wednesday morning?
A. I can't be right positive, but to the best of my recollection I think
it was on Tuesday evening.
Q. Did you stay at the Bluff after you were discharged?
A. I don't recollect whether I did or not.
Q. When I told Mr. Vandiver that there was no Clerk, and that you
could go on and finish what business you had on hand, didn't he then
tellme that the grand jury wanlted subpenas?
A. I don't know what passed between you and Mr. Vandiver.
Q. Did the grand jury remain in session after it was discharged?
A. I think not.
Q. Did they do anything?
A. Do you mean did they do any business?
Q. Did anybody make a motion to put me in Black river?
[Question objected to, but before a decision of the objection witness
answered.]
A. I heard nothing of that kind.
Mr. KNOTT.  When did you leave after being discharged?
A. I left on Wednesday.
Q. Do you know whether it rained that day?
A. Yes, sir. It rained hard.
Q. Of course you don't know what transpired after you left?
A. No, sir, I don't.
TESTIMONY OF J. G. RUFF.
J. G. RUFF called and examined by Mr. Knott.
Q. State, Mr. Ruff, if you were a member of the grand jury at the
November term of the Circuit Court of Butler county, in 1857.
A. Yes, sir, I was.
Q. When were you discharged?
A. On Tuesday evening.
Q. Had you completed the business before the jury before you were
discharged?
A. No, sir. We had some very important business on hand, and it
was against my feelings.
Q. State what occurred when you were called into court and discharged.
A. As well as I recollect, we were called in on Tuesday evening, and
made some reports. Then the Judge told us to consider ourselves discharged.
CROSS-EXAMINED BY JUDGE JACKSON.
Q. Didn't I state that there was no Clerk, and for that reason no subipenas could be issued for witnesses before the grand jury?
A. Yes, sir, I think you did.
Q. Didn't you need subpenas?
A. Yes, sir, we did.
Mr. KNOTT.  What was the matter with that Clerk?
A. The report was that the Clerk was drunk.
Q. Do you know Donaldson Walker?
A. No, sir. I don't know him.
186 
HIGH COURT OF IMPEACHMENT.
TESTIMONY OF HENRY H. BEDFORD.
HENRY H. BEDFORD called and sworn, and examined by Mr. Knott.
Q. Where do you reside, Mr. Bedford?
A. In Bloomfield, Stoddard county, Missouri.
Q. WVhat is your profession?
A. I practice law.
Q. In what counties do you practice?
A. I practice in all the counties of the Fifteenth Judicial Circuit.
Q. How long have you been practicing in that circuit?
A. Ever since it was established.
Q. Were you at Wayne Circuit Court when a change of venue was
awarded in the case of Limbarger vs. Powers?
A. Yes, sir.  I was attorney for Mr. Powers.
Q. Who were attorneys on the other side?
A. Mr. Fox and Mr. Pipkin were the attorneys for Mr. Limbarger;
Mr. White and myself for Mr. Powers.
Q. State, if you please, if you were present when a change of venue
was awarded in this case, and whether there was any understanding
between the parties and the attorneys as to what counties the case
should be sent.
A. I do not know that I can relate everything that occurred, but I
can give the substance of it. Mr. Fox, attorney for the plaintiff, filed a
petition for a change of venue. I believe there were two cases,-one
Limbarger vs. Powers, and the other Powers vs. Limbarger, and the petitions were prepared in both cases. When Mr. Fox presented the petition in the first case, he asked me if we could agree upon a county, and
I think suggested Fredericktown.  I asked Mr. Powers, and I do not
recollect what his response was. He or I observed that the case could
go to Bollinger or Iron.  Mr. Fox said that either would suit him.  I
think this was the understanding between Mr. Fox and myself. Uponl
the agreement being consummated, Mr. Fox presented the fact to the
court, as well as I recollect, at the time the petition was presented, saying that the case could go to either Iron or Bollinger. I believe there
was no immediate reply, but when Mr. Fox handed up the petition and
affidavit, the Judge dropped the papers, and said the case should go to
Mississippi county. Hle spoke in an unkind tone. His language as
near as I can give it was: "Mr. Clerk, a change of venue is awarded in
this case to Mississippi county." Mr. Pipkin then stated that if the
court persisted in sending the case there, he would be thrown out of
the case. The Judge replied that that was no business of his, saying
that it was for the Judge to determine where a case should be sent to.
Q. How far is Mississippi county from Wayne?
A. Well, sir, I couldn't be positive about the distance. I would estimate it between seventy-five and one hundred miles from the county
seat of Wayne to the county seat of Mississippi, by the usuallytraveled
route going through Bollinger, Cape Girardeau, and Scott counties.
Q. In what circuit are these counties?
A. They are all in the Tenth Judicial Circuit.
Q. Where do Limbarger and Powers live?
A. In the north part of Wayne.
Q. Do you know whether the county of Mississippi was convenient
to these parties?
A. It was more inconvenient than any of the counties mentioned.
Q. Do you know whether they wished the case sent to Mississippi?
A. I can say that my client was opposed to it.
Q. How far is it from the county seat of Wayne to the county seat of
Iron county?
187 
H7I0GH COURT OF IMPEACHMENT.
A. They say it is about forty miles. Ironton I think is pretty nearly
north of the county seat of Wayne. The two counties are contiguous.
Q. What are the relative positions of Wayne and Bollinger?
A. They join. Wayne is bounded on the north by Iron, Madison,
and a part of Bollinger.
Q. What was the demeanor of the Judge towards the counsel upon
this occasion?
A. I thought it manifested an unkind spirit. He said but little, and
I could not give his precise language.
Q. Do you practice in Dunklin county?
A. Yes, sir. I do.
Q. Were you at the May term of the Dunklin Circuit Court in 1858?
A. Yes, sir.
Q. Were you connected in any manner with the case of Smith vs.
Cude?
A. That case was sent on change of venue to Pemiscot county. I represented Cude.
Q. Do you know who the attorneys on the other side were?
A. I do not know that I recollect all the attorneys on the other side.
I think Mr. Kitchen, Mr. Horner, and a young gentleman from Dyer
county, Tennessee, were on that side.  Mr. Richardson was perhaps the
principal counsel, though I believe he was not present at the Dunklin
Circuit Court.
Q. Were you in court when the change was awarded in this case?
A. I may have been, but I have not any distinct recollection about it.
Q. Were you connected with the cases of the Point Pleasant and
Dunklin County Road Company vs. Moses Farrar, and the same vs.
Nathaniel G. Murphy?
A. I was representing the road company. I don't recollect which of
the counsel took the change of venue.
Q. Was there any understanding between the counsel on both sides
and the parties as to where the case should be sent?
A. It is my impression that there was. If I am not mistaken, we
understood that the suit should be taken to Cape Girardeau. When
this was represented to the court, the Judge then said, I think, that
the counsel had no right to say where a case should be sent; that it was
the business of the court to say; and he sent the case to Pemiscot
county.
Q. Why did you prefer Cape Girardeau county to Pemiscot?
A. Our preference could only be understood by a knowledge of the
peculiar geography of that country. Although Pemiscot and Dunklin
are adjoining counties, there is a large swamp, commonly called "Nigger Wool," which separates them, and generally at the spring of the
year it is impassable; at least the only travel is by means of dug-outs,
canoes, and the like. To go from Dunklin to Pemiscot we have to
travel out by the Levee, and I think it is over a hundred nAles from the
county seat of Dunklin to the Levee, and thence to the county seat of
Pemiscot the distance is about the same, so that altogether it is 200 miles.
Q. How many counties do you pass through in going from one place
to the other?
A. You would have to go through Cape Girardeau, Scott, and New
Madrid counties.  As I said before, Pemiscot and Dunklin are adjoining
counties, but this swamp operates a barrier, so that they are completely
cut off from direct communication throughout the greater part of each
year.
Q. Was any representation of these facts made to the court?
A. At the time the petition was filed, I do not know that anything
was said to the court about the inconvenience to which the parties
188 
HIGII COURT OF IMPEACHMENT.
would be subjected should they have to go to Pemiscot, though I think
when the petition was prepared the counsel agreed upon Cape Girardeau, and after the award was made they remonstrated with the court,
endeavoring to induce a different award.
Q. Which party took a change of venue?
A. It was the defendants in both cases, I believe.
Q. Where does Mr. Murphy live?
A. In Dunklin county. He was the Representative from that county
in the Legislature last winter.
Q. Where does Moses Farrar live?
A. He lives close to the county seat of Dunklin county.
Q. Did any of the counsel engaged in the causes at Dunklin court
follow them to Pemiscot county?
A. They never have to my knowledge. I have not, and I have not
heard that any of the others did.
SE.ATOR PARSONs.  What were the causes assigned in the petitions
for change of venue?
A. My recollection is that the change was asked on the ground of
prejudice against the persons presenting the petitions.
Mr. KNOTT.  Were you at Butler Circuit Court in May, 1858?
A. Yes, sir, I think I was.
Q. Were you present at the trial of Gibson vs. Dunn?
A. 1 cannot be positive that I was present during the whole of that trial.
Q. Did you see William G. Phelan there?
A. I did.
Q. Please state what occurred, during the pendency of the suit,
between the court and Mir. Phelan.
A. My recollection is that the case was called in the morning and progressed as such trials usually do till noon. The argument of the case
was deferred till afternoon session.
Q. Were you present in the afternoon?
A. Yes, sir, I was.
Q. Please state what transpired between the court and Mr. Phelan at
that time.
A. I don't recollect the precise point at which the trial had arrived,
but I think the case was ready for argument.  Mr. Phelan arose at the
time I expected him to address the jury, and made some motion addressed either to the court or the jury, I am not prepared to say which.
The court stopped him, saying that he wanted him to understand that
he was in contempt of court, and that he would have to answer for that
in an alleged charge of tampering with the grand jury. The court
ordered him to set down.  Mr. Phelan said something, whatever it was I
couldn't repeat it. He waited a few minutes, and the court told him he
might proceed with the case then on hand. There was a great deal of
unkind expressions passed between them. I do not recollect them with
sufficient accuracy to repeat.
Q. How did Mr. Phelan demean himself before this? 
A. So far as I saw, he demeaned himself with becoming courtesy to
the court. Nothing of which I have any knowledge transpired in the
forenoon, or immediately after noon, to disturb the usual course of proceedings.
Q. Did you observe any indication of ill feeling on the part of Mr.
Phelan before the charge brought against him of tampering with the
grand jury?
A. No, sir, I did not. It was not until after the charge was made
that he exhibited any feeling, but then he seemed somewhat excited. I
am not certain whether it was on this occasion, but I think the Judge,
in his remarks to Mr. Phelan, made some threat, or intimated that Mr.
189 
HIGH COURT OF IMPEACHMENT.
Phelan would have something to dread.  Mr. Phelan asked if it was a
fine. The court said it was not. He then asked if it was confinement
in jail, and receiving a negative response, he said, "ah, perhaps it is to
strike me from the roll."
Q. Wereyou at Ripley county Circuit Court, November term, A. D. 1857?
A. I don't know that I could testify as to the date. I presume that
I was there.
Q. Are you acquainted with D. M. Fox?
A. Yes, sir. He is a lawyer practicing in the Tenth and Fifteenth
Circuits. I have known him for the last ten or twelve years.
Q. The point I wish to direct your attention to is some conversation
between Judge Jackson and Mr. Fox, involving a charge of lying.
A. If I recollect rightly, the circumstance happened at Ripley court.
I wouldn't undertake to testify as to the term. Probably it was the
fall term, 1857. Some firm in Cape Girardeau sent out a note to Ripley
county, and sued somebody on it. Mr. Fox filed an answer. I don't
recollect the filing, and do not speak from my own knowledge as to the
character of the paper. The Judge examined it in court, and while
doing so, turned to Mr. Fox and asked him if he wrote that, whether
it was in his handwriting, or something of that kind. Mr. Fox replied,
"yes, sir, I believe so, it looks like my  handwriting,"  and inquired
what was the reason for the question. The Judge replied as well as I
can recollect, "nothing much, only whoever wrote it either swore a lie
himself or made his client do so."
SENATOR WATKINS.  What was Mr. Fox doing at that time?  Was he
addressing the court?
A. I don't think Mr. Fox was doing anything in the way of business.
It is my impression that he and I were sitting together, and we were all
waiting for the decision of some question submitted to the court. Perhaps it was the sufficiency of the answer filed by IMr. Fox. I don't
recollect anything going on at that time, except that the Judge was
examining the paper.
Q.Were you at the Butler Circuit Court, November, 1857?
A. Yes, sir. I think I was.
Q. What time did court there convene?
A. Under the statute we are allowed one week for court there, commencing on the first Monday of November. I think court convened
then at the usual time.
Q. When did court adjourn?
A. On the second day of the term-about the middle of the day, on
Tuesday, I think.
Q. Were you present when the grand jury was discharged.
A. I think I was.
Q. State what occurred when they were called in and discharged?
A. Well, they were asked the ordinary question whether they had
any returns to make. They replied that they had some, and I believe
they did make some presentments. I am not clear about that, however.
They were then asked if they had any further business on hand, and
the foreman replied that they had unfinished business on hand. I don't
think anything more was said. The Judge dismissed them then.
Q. Was there any business done on the second day of court?
A. I don't think there was any trial. Some efforts were made to dispose of cases and business not requiring a trial.
Q. What occasioned the disturbance in the usual business of the
court?
A. The absence of the Clerk.
Q. What was the matter with the Clerk?
190 
HIGH COURT OF IMPEACHMENT.
A. Those who went to see him said that he was drunk. I did not see
him myself.
Q. Do you know whether any proposition was made to the court by
which this difficulty could be obviated?
A. Yes, sir. There was some proposition to allow the lawyers to keep
the minutes and make up the record in turn, in such cases as they were
not severally interested in.
Q. Do you know of any other plan proposed by which to get on with
the business?
A. There may have been, but I do not recollect it.
Q. Was the plan which you mentioned, of allowing the lawyers to
make up the record in such cases as they were not engaged, in turn,
an unusual thing?  Had such a thing ever been done before?
A. Yes, sir, it was very customary.  I think that at least one-half of
the minutes and one-half of the record of that court for the last few
years have been made by the lawyera I have done a good deal of re cording there myself
Q. What did the Judge reply when this proposition was made to him?
A. I don't recollect precisely what it was. He did not acquiesce.
Q. What became of the papers pertaining to the causes then pending
in court, after the failure of the Clerk to go on in the discharge of his
duties?
A. I could hardly say. I think the Judge made some remarks to
the effect that there had been a good deal of complaint about the papers being lost. It is a fact that they are very badly kept at best. In
the course of the day, he took what papers he could find, and wrapped
them in a newspaper, and put them under his arm.
Q. What became of them after that?
A. I only know from what the rest say. I did not see anything more
of them.
Q. Was Judgfe Jackson apprised of tile manner in which the papers
were usually kept by the Clerk?
A. He must have been.
Q. Have you any recollection of a request made to the Judge to
appoint a Deputy Clerk, or to approve an appointment made by the
Clerk?
A. I believe I do recollect now that a gentleman named Donaldson
Walker was proposed by some one, and I think there was a written application made for his appointment.
Q. Who made that application?
A. It purported to be written or was signed by the Clerk.
Q. What was the Judge's reply to this application?
A. The reply, as well as I recollect it, was, that unless Mr. Blount was
in court himself, and would ask for the appointment of this deputy, he
didn't deem that he had any right or authority to make it. He wouldn't
appoint him. 
Q. Were you at Ripley Circuit Court in April, 1858?
A. Yes, sir.
Q. Were you concerned in the case of James Moore vs. John Eldridge, administrator of the estate of Parker?
A. Yes, sir.  I was engaged as attorney for Mr. Moore.
Q. You will please give the Court a statement of any unusual or irregular incidents of that trial that you may recollect.
A. I will as well as I can. There had been a non-suit taken by Moore.
The case was then in the Circuit Court on an appeal from the County
Court. It was an application for an allowance from the estate of Parker
to Moore of charges as clerk of the firm of Parker and Moore, and the
191 
HIGH COURT OF IMPEACHMENT.
charges were predicated upon an article of agreement entered into between Moore and Parker in Parker's lifetime.
Q. Were you present at the trial of the cause?
A. Yes, sir. I was.
Q. Do you know anything in relation to a bill of exceptions prepared
after this trial?
A. Yes, sir.  It was prepared by Mr. Kitchen, who was on the same
side of the case with me. He presented the bill of exceptions, and the
Judge objected to signing it, and pointed out an alleged defect in the
testimony. He said the bill didn't contain the testimony of a witness
named Kittrell as it had been given before the jury oil the trial. There
was a difference of opinion as to what the testimony of this witness was,
and to settle it, the proposition was made to have Kittrell called in. He
was accordingly called. The Judge had objected to signing the bill of
exceptions unless Mr. Kittrell's testimony was made to contain a statement as to the fact of an erasure existing, upon the article of agreement, of a certain date. Mr. Kitchen insisted that the witness, Kittrell,
hadn't said anything about this erasure. When Kittrell was called in
he said that he didn't say any such thing, and added that the mark or
erasure upon the paper was just as it had always been. Then I understood the court to say that whether Mr. Kittrell had said so or not, it
was a fact that the erasure did exist upon the instrument, and that he
wouldn't sign a bill of exceptions until this fact was made to appear in
the testimony. He then interlined the bill and signed it.
Q. Did the interlineation make Kittrell's testimony contain a statement of this fact which he said he had not testified to before the jury?
A. That was my understanding of it. He made Kittrell's testimony
state the fact of the erasure upon the instrument by means of the interlining.
[Several Senators did not fairly understand the witness in his relation
of the circumstances as above, and at their request he repeated this portion of his testimony once or twice, without any substantial variance.]
Q. Were you present at Bloomfield, at the Stoddard Circuit Court,
November, 1858?
A. I was.
Q. Were you present in court during the pendency of the case of
Gustavus Berry vs. John Griffie?
A. Yes, sir. I was connected with that case as counsel. I represented
Mr. Berry.
Q. Who was on the other side? what attorneys?
A. Mr. Tyrell for one, Mr. Wasson, perhaps, and others.  I do not reinember distinctly.
Q. Do you know whether there was a bill of exceptions prepared in
that case?
A. Yes, sir, there was.
Q. Who prepared it?
A. Mr. Tyrell, I think. 
Q. Did you examine it?
A. I did.
Q. Did you find it correct andl in accordance with the facts as they
should have appeared of record?
A. I don't know that I noticed it very particularly.
SE\NATOR WATIINS suggested that the record would now be the most
appropriate and most acceptable evidence in connection with that charge.
Mr. KNOTT stated that they were going in the light of precedent, and
that after the parol testimony on this point was concluded, they would
complete the proof they wished to lay before the Court with the record.
192 
HIGII COURT OF IMPEACHMENT.
SEN-ATOR Ip.    ~ONS stated his view of the law, and the examination pro  ceeded.
Q. You w'vls plea,e go on and state whether you examined the bill,
and whether you found it correct.
A. If the Court sees proper to hear my statement in regard to this
matter, I will say that I did examine it, and I found it to contain the
testimony substantially as it was introduced upon the trial.
Q. Did you examine the bill with a view to ascertaining whether the
motion papers were correctly set forth?
A. I do not remember  to have noticed very particularly as to that.
Q. Did you hear his motions argued?
A. Yes, sir, I did. I saw his motion.
Q. What was it?
A. It was two-fold; first, in arrest ofjucldment, and then for a new trial.
Q. What were the causes alleged as the basis of these motions?
A. I do not remember them all.  Armong others was the cause that
the jury had given more damages than the plaintiff had claimed.
Q. Had there been. a remitter entered?
A. Yes sir. I enteredI a remitter.  But I don't recollect whether it was
beifore or after the motion.   I believe Mr. Tyrell had argued his motion
before the remitter was made, and I think the remitter was made some timne between the argument of the motion and the decision upon it.
Q. Were you present when the bill of exceptions was presented to
the court for signatuie?
A. I don't tink I was.  It was presented to me  by Mr. Tyrell, and
he  asPke(i ile to exawmiie it.  It was with a view to ascertaining whether
the testion    a correctly set forth that I examined it.  When he
asked me it I was satisfied, I think perhaps I made some few correc tionrs, and gave it back to him.
Q. Did you consent to that being a sufficient statement of the evidence had in the cause?
A. Yes, sir, I did.  And I recollect now that I was present when the
bill was presented.  There was a good deal said by both the Judge and
Mir. ITyrell, whivh I could not now repeat.
Q. Diid  ou hear any thing said about the motion papers?
. i dill, but I could not now state what it was.  I felt very indifferent
about it. I thogt,ht Mr. Tyrell was trying to get a good many immateial points in his case, and feeling, confident that I had the strong side, I
pai( very little attention.
Q. Did the court sign the bill as it was presented?
A. I think, after a good deal of discussion, he ultimately refused to
s;gn it until something was stricken out.
Q. Dici hlie thenr sign it?
A. It is my impression that he did.
Q. Did lie sign the evidence?
A. No, sir, he did not. I believe the evidence was on a sepa,ratepaper.
Q. What reason did he assign for refusing to sign the evidence?
A. Well, I think he said that the counsel had spoken so low that he
dildni't know what their questions were, and he didn't know what the
testimony in the cause had been.
Q. Was it represented to him that you had consented to the testimiony as prepared?
A. Yes, sir, it was.
Q. What is the practice in your courts. Mr. Bedford, in relation to the
saving of exceptions? Do you prepare the record matter for a bill of
exceptions, leaving blanks where you say, "here insert the testimony,"
and prepare the testimony as a separate document, or do you copy it all
out together?
13
1 9"1-01 
HIGH COURT OF IMPEACHMENT.
A. When Judge Jackson came on to the circuit, it was the practice, I
think, to sign the bill of exceptions and the testimony separately; the
first being prepared with blanks, and directions to insert the testimony,
in parenthesis. I think he has changed} that rule, and in some instances
would not sign a bill of exceptions unless it was filled out with the
testimony, and all other matter necessary to make it out.
Q. Were you present at Stoddard Circuit Court pending the trial of
Orson Bartlett on an indictment for gaming?
A. Yes, sir, I was present. I don't know that I was in when the case
was called, but I think I was.
Q. You will please give us an account of what occurred in court
during that trial.
A. The indictment embraced Col. Bartlett and others.  A  jury was
empanneled. David G. Hicks was acting as prosecuting attorney.
Q. You say that the indictment embraced Col. Bartlett and others.
Who were the others?
A. Judge Jackson, David G. Hicks, and some one else, I do not know
that I remember. The charge was for betting, or playing for whisky, or
oysters. Perhaps it was for a watermelon; I don't recollect. On the
trial, perhaps there were three or four attorneys for the defense-Mr.
Kitchen, Mr. Tyrell, and two or three others.  When it came up to be
tried, James B. Odell was called as a witness, and testified that the
parties charged had played and bet for some article. The court, or some
one of the attorneys, asked Mr. Hicks what he was going to do in the
case. He replied that he was going to argue it, and submit it to the
jury. The court objected, saying that there were no facts to base an indictment upon. He said the Legislature never intended, nor had not
made indictable such playing as the facts of this case showed it to be;
that where parties played, and whoever lost the game merely had to
pay some penalty, it was not betting, or such betting as the statute
made punishable; and he went on with a somewhat elaborate opinion
to show what a contrary notion would lead to. Hie went on to state
that where the loser in such games paid for the property, it became his,
and that if he saw fit to allow others to participate in its enjoyment, it
certainly was not betting on their part, or the part of the loser. Hie
referred to two or three instances in which, if a contrary doctrine prevailed, the State of Missouri might be considered as gaming, and in
this connection spoke of the division of the State into agricultural districts, and the premiums which it was customary to offer for the best
stock, and the best machinery, and the like. Ile further illustrated his
position by an allusion to the premiums offered in schools and academies to the pupils who would beat the others learning.  I could not repeat his language, and do not pretend to do so.
Q. Well, what did he say in relation to the action of the jury in the
case on hand?
A. He told the jury they should find a special verdict; that there
was no testimony to prove a betting, and that they coul4find a special
verdict, or find the facts, and he would apply the law. After the enun ciation of this opinion, M{r. Hicks entered a nole prosequi.
Q. The case was not argued to the jury at all then?
A. No, sir. It was not.
Q. Were any instructions asked by the attorneys on either side?
A. I do not recollect that there was.
Q. Was any proposition made to send the case to the Supreme Court?
A. Not that I know of.
SENATOR PARsONs.  Did I understand you to say that the Judge and
the Circuit Attorney were presented in the same indictment with this
man?
194 
HIGH COURT OF IMPEACHMENT.
A. That was my understanding.
Q. Were you at the Stoddard Circuit Court, November, 1857, at the
trial of Sarah Buckner?
A. I wasn't there the whole time, though I was present a good part of
the time.
Q. Were you present when William C. Grimsley was on the stand as
a witness?
A. I was there during a portion of that time, not all. I know nothing
of my own knowledge about his testimony, except that he was on the
stand as a witness.
Q. Were you present when Mr. Davis was arguing his case before'
the jury?
A. I was.
Q. Will you please give a detailed account of what you saw transpire,
during the delivery of Mr. Davis' argument?
A. I don't know that I can give an intelligent one, but from the argu ment I understood that the testimony of the witness Grimsley had been
withdrawn from the consideration of the jury. Mr. Davis was counsel
for the accused.  Whenever in the course of his argument he alluded toi
the evidence of Grimsley, he was interrupted by Judge Jackson. On
one occasion the Judge told him not to make his argument on outside
matter, but to confine himself to the facts in evidence. Mr. Davis re plied that he was proceeding to do so, and the Judge rejoined that the
testimony of Grimsley was withdrawn. Mr. Davis proceeded, saying it
was true this testimony was withdrawn. but the defendants had excepted
to it. He went on to state a hypothetical case, and spoke of the girl, a
daughter of the accused, who was connected with the murder. There
had perhaps been some intimation that the deceased attempted to violate the person of this girl; and Mr. Davis, in stating his hypothetical
case, was calling upon the jury to think ot what would be the consequence, and what the feelings of the mother, if this tale of woe was
poured into her ears. I think in the form of a supposition he pictured
the girl as "pouring this tale of woe into her mother's ears."  At this
point he was stopped by the court in an abrupt manner.  I can't pre —
tend to say what it was the Judge said to him.  It was something ex
pressing dissatisfaction as to the manner in which  the argument was
proceeding
Q. Did you hear all of Mr. Davis' argument?
A. Yes, sir, I believe I did.
Q. Do you say he was stopped more than once?
A. Yes, sir, several times; as often as three times, at least.
Q. Was he in the proper line of his duty when stopped?
A. I do not know that I could decide. I saw nothing in Mr. Davis'
demeanor that I would have designated as improper. He seemed disposed to manage the case as well as he could for his client.
Q. In this hypothetical case that you speak of, was there arything
disrespectful to the Judge?
A. Nothing, that I saw.
Q. What happened after the last interruption that you mentioned?
A. Mr. Davis said that if he couldn't argue the case without being told
what he was to say, or if he couldn't be permitted to argue it as he
thought best, he would give it up. The reply was that if parties didn't
see fit to get attorneys who were competent to attend to their business,
they would not lose much when the attorneys that they did employ
gave up their cases.
Q. I understood you to say that Mr. Davis spoke of Grimsley's testimony as having been withdrawn, and not as evidence before the jury?
A. Yes, sir. He spoke of it, and in his allusions to it he only
195 
HIIGH COURT OF IMIPEACHIMENT.
brought it in, by way of supposing that the facts were so and so.  I
tliought he was building his hypothesis onl Grimsley's testinioiiy as a
basis. Before he had fairly submitted his supposed case, the court
interrupted him, and said that he had been told often enough that that
was not testimony, and that it had been withdrawn.
Q. Were you present during the argument of lMir. Phelan in this
same case?
A. I was not.
SENXATOR VERNXOX. Were you in court when the motion for a new trial7
or the motion in arrest in the Buckner case, was under consideration?
A. I don't think I was present.  According to the best of my recollection, leave was given to file a motion, and it was not decided until
some time afterwards.
CROSS-EXAMINED BY JUDGE JACESON.
Q. Didc you say you were present throughout the trial?
A. I was not present a great deal-not all day.  I don't know how
much of the trial I witnessed.
Q. Was there more than one witness besides Grimsley?
A. I never saw nmore.
Q. Did you hear the testimony of Grimsley?
A. I did not.  I may have heard detached portions of it, as I was
passing in and out, but I could not say that I heard his testimony.
Q. Do you know whether they excepted to the withdrawal of G-rimsley's testimony?
A. I don't know, indeed.  I inferred so from what I heard of Mr.
Davis' speech.
Q. Wasn't it only that part where he undertook to tell what Mrs.
Buckner said her daughter had said?  Wasn't that the part that was
objected to on the ground that it was hearsay?
A. I d(on't know.
Q. WVith regard to my stopping Davis, wasn't it when he undertook to
comment on the part of Grimsley's testimony what the girl told her
mother?
A. N\ot having heard Mr. Grimsley's testimony, I cannot say.  First,
lie went onr to state that if the facts were as tlhis girl had represented
them, and the man Buckner had violated her person, and the girl then
poured this tale of woe," and then you stopped him.
Q. Well, now, wasn't it his object in going on with this supposition
to get Grimsley's testimony before the jury?
A. I wouldn't undertake to say precisely what his object was.
Q. Well, what had they excepted to? what did Davis say, in talking to
the jury, that they had excepted to in regard to Grimsley's testimony?
A. What was done during the trial, prior to what I have related, I do
not know.  I understood or inferred that they had objecte(l to the withdrawal of the witness.
Q. You state that my interruption of Mr. Davis was abrupt?
A. Yes, sir; on the third occasion I thought it quite abrupt.
Q. What do you mean by abrupt?  What would be called an abrupt
interruption?
A. When I said that you had interrupted him abruptly, I meant that
you did it with more vehemence, energy, and force than you ordinarily
speak.  I do not know that I could describe it otherwise.  It seemed
that you thought he was doinig wrong, and felt incensed at him. I thinkl
you observed to Mr. Davis that the testimony had been withdrawni, and
that he had been so informed often enough.
196 
IIIGH COURT OF IMPEACHMENT.
Q. Did I say that the testimony had been withdrawn, or that what he
wv as going over was not testimony?
A. The language used conveyed to my mind the idea that he was conm mentillg on what was not testimony.
Q. Well, we will go back to Wayne.  In this case of Limnbarger vs.
Powers, which party did you represent?
A. I was for inr. Powers.  He had employed me.
Q. Did he tell you that he wished the case sent to MAladison or Iron
county?
A. I think he did tell me he would prefer going to Ironton rather than
to Madison county.
Q. Did he prefer Iron to any other county?
A. I do not know.
Q. When Mr. Fox presented the petition for the change of venue, did
hlie tell me that there was any agreement as to where the case should go,
or did you or any other attorney make any such statement?
A. I think Mr. Fox simply stated the fact of such an agreement hlaving
been made.
(i. Did any other attorney know it was an agreement?
A. I cannot say that any one did.  My impression is that Mr. Fox and
I were standing together, and he told you that the counsel for both
parties had agreed that the case should be sent to Iron or Bollinger.
Q. Ilow far dlo you live from the county seat of Mississippi county?
A. Straight throughi from Bloomfield to Charleston is about forty-five
miles.  During the winter and spring we cannot go that wa,te, and it is
farther then.
Q. HoIw far would you have to go from where you live going to Iron
or fadison?
A. It would be nearer to Mississippi if the waters were not up.  I do
not know that I could give you the exact distance to either Ironton or
Frederickltown.
Q. Do you attend the courts in Iron county?
A. I never did attend there.
Q. If the case had been sent to Iron county wouldn't it have cut you
out of the case?
A. I suppose, sir, it would.
Q. Isn't it difficult in Madison Circuit Court to get a case tried?  Isn't
there an accumulation of business in both Madison and Bollinger counties, so that it would have been wrong to have sent the case there?
A. I think there is always at good deal of margin not disposed of in
both those counties.  That is a general thing in the Tenth Circuit.'hey
have one or two clays more than is necessary for the trial of the causes.
Q. Was it not more convenient to you to have the case in Mlississippi
than it would have been if it had been sent to either of these counties?
A. As an individual it would have been more convenient, beca,se if I
wanted to have a case attended to there, and could not attend to it myself, I have some relatives living in that county, and could send to some
individuals who would be more attentive to my business for me than [
could expect others to be.
Q. Do you attend the courts of Madison?
A. I have not recently attended the Circuit Courts in that county.
Q. If the case had been sent there would you have attended?
A. Nro, sir. I should not have attended.  As far as that is concerned,
I don't attend the courts in either county named.
Q. In speaking of this array of counties, do you pretend to say that
there is not a nearer way to go straight through from Greenville to
Charleston?
A. Yes, sir; at somie seasons it is possible to go through by way of Dal
197 
HIGH COURT OF IMPEACHMENT.
las, but to say that there is any travel on that route I could not. There
is no road which is passable any great portion of the year.
Q. What kind of a route is it to go from Greenville to Bloomfield?
A. Very good.
Q. Did you ever hear of persons going through by way of "Nigger
Wool?"
A. Very rarely. I never went that way myself, and I have seldom
heard of others doing so. It is possible that there may be some travel
on that road when the swamps and ponds are frozen over.
Q. Well, now, in regard to this Dunklin county case of Smith vs. Cude.
Where does Cude live?
A. Mr. Cude lives in
Q. Where does the other party live?
A. Mr. Smith is a Tennesseean. I understood that he lived in Dyer
county, Tennessee.
Q. Would not Pemiscot county be the most convenient for him?
A. I suppose it would be the most convenient for that party under
any kind of circumstances.
Q. Didn't Smith take the change of venue?
A. I cannot say. I don't know which one of them it was.
Q. Wasn't there a proposition to take the case to Jackson, or to the
county seat of Scott?
A. I don't recollect.
Q. Well, about the other two cases-the Dunklin plank road cases.
WVhich party did you represent?
A. I was employed by Mr. Clark.
Q. Who are the officers of that company?
A. I think Messrs. Richardson and Clark are the principal men.
Q. Where do they live?
A. Mr. Richardson lives in M]emphis; Mr. Clark, I think, in New
Madrid.
Q. Who is President of the road?
A. Mr. Clark, I think.
Q. Which will be the most convenient county for him?
A. Pemiscot, I suppose.
Q. Who conmpose the company?
A. It is composed of citizens of Pemiscot, New Madrid, and Dunklin
counties.
Q. Which party took the change of venue?
A. The defendants, in both cases.
Q. Hasn't that company built a road by which you can go through on
a direct route from Greenville to Pemiscot county?
A. I do not know how it is now. Before that court I think there was
no road there for ordinary traveling.
Q. Well, don't the citizens of that county go through direct across
the swamp the year round?
A. I think not.  I know there is a great deal of travel from Pemiscot
to Dunklin, and from Dunklin to Pemiscot, going around through our
place; while it is possible perhaps to go through that way, I don't
know any person who does so.
Q. Haven't they got within three miles of          with that plank
road?
A. I don't think any road is finished yet. How much of it is finished
I can't say. When this change of venue was taken at the spring term
a year ago, it is my impression that no part of the work was done.
Q. At what time does the court come on in Madison county?
A. On the first Monday of March.
Q. And when is the court in Wayne?
198 
HIGH COURT OF IMPEACHMENT.
A. I believe it is the last Monday in March.
Q. Then they come on pretty near together, and when the court in
Wayne was held, the court in Madison was over.
A. Yes, sir, the court was over there.
Q. How long would it be from the Wayne Circuit Court to the court
in Mississippi county?
A. I don't know.
Q. Wasn't there time to take the papers, and have the case ready for
trial at the next term?
A. I can't say.
Q. In the other two cases didn't the plank road company want the
cases sent to Pemiscot?
A. No, sir.  We wanted them to go to New Madrid or Scott.
Q. What kind of suits were those?
A. Suits were brought before a Justice of the Peace to recover subscriptions of stock, I believe. The defendants took the change of
venue.
Q. You say you were at the Butler court when this Gibson vs. Dunn
matter transpired. When I told Mr. Phelan he was in contempt, wasn't
it that I had just notified him that he was in contempt of court, and
would have to answer?
A. I inferred from what was said that something had transpired
which you considered contempt of court, and you did notify him that
he was in contempt.
Q. Well, don't you think I had just cause?
A. I only know from others what your cause was, and it is perhaps
needless to express an opinion about it.
Q. When he got up and said he wanted to vindicate himself from the
charge of contempt of court, didn't I tell him to go on with the case?
and when he:insisted after that on going into an exculpation of himself,
wasn't it then I told him to hush up and go on? Wasn't it when he
still insisted upon vindicating himself after I told him that I didn't
want to hear a vindication of himself then,-wasn't it then that I told
him to go on with the the case?
A. It is true that you notified him he was in contempt of court, and
that he wanted to vindicate himself immediately. I didn't understand
the circumstances to transpire exactly in the order in which you relate
them. When you said that he had been tampering with the grand
jury, he replied by asking why you said so, and a good deal of talk
passed between you which I don't pretend to relate with exactness.
Q. Was Mr. Phelan very mild in the remarks he addressed to the
court?
A. He was not, but just the reverse. The harsh manner in which
you spoke to him was met by a corresponding harshness on his part.
Q. Well, what further did you see there?
A. I didn't see anything further of an unusual character after the
trial of the cause then pending was resumed. 
Q. Did you see anything improper in my treatment of Mr. Phelan in
notifying him that he was in contempt, and that at the proper time I
would hold him to answer?
A. If I was to give an opinion, I would say that you were wrong all
around.
Q. In what way?
A. In the harsh expressions used on both sides.
Q. What were those harsh expressions that you think wrong?
A. I have said that it was out of my power to rehearse the conversation.
Q. Don't you think you could imitate my harshness?
199 
HIGII COURT  OF IMPEA('CHMIEN7T.
A. I am not here for that purpose.
Q. Couldn't you give a single instance of a harsh expression?
A. I can only describe your manner and expressions generally.  Your
whole manner and tone was excited and vehement.
Q. Which was the worst, the tone or the language?  You say you
can't give the manner; couldn't you give us an instance of the tone in
which I addressed MIr. Phelan?
A. I don't know that I could.  As to your tone and language, I think
they were about on a par.
Q. Wasn't it simply a warm discussion on matters about which we
happened to differ?
A. That may or may not be.  I should say you showed too much hard
feeling to make that a good description.
Q. Well, how were these hard feelings shown?
A. In various ways; on his part in his attempts to rebut the charge
against him, and on your part in bidding him hush uip, take his seat,
and so on.
Q. Did I fine him, or send him to jail?
A. -tot to my knowledge.
Q. Let me now inquire about this Ripley county case, in which it is alleged that I told 3Ir. Fox lie lied.  vWhat did youL say was the origin of'
that matter?
A. I said that to the best of my recollection there had been some
difficulty about a pleading drawn up by MIr. Fox.  I think it was some
difficulty about an answer filed by him.
Q. Wasn't it an answer filed in the-samre case on a former termn, which
had been demurred to and the demurrer sustained?
A. I don't know.
Q. Di(dn't you ihear him say that he had filed an amended answer?
A. If I didI, I don't recollect it.
Q. When I took the paper and compared it with the other, and asked
him if this was his handwriting, wasn't my expression that one or the
other was false?
A. MIy recollection is that you asked him if this was his handwriting;
and when he  answered affirmatively, you said that the draftsman had
either sworn a lie, or had made his client swear to a lie.
Q. Do yeaL thick that was the way of it?
A. I do.  That is your language as nearly as I can repeat it.
Q. You sav, then, that I said that the draftsman  had lied. Is that
the way you mentioned it before?
A. Yes, sir, it is substantially as I stated it before.
Q. Do you think I used the word draftsman at all?
A. I cannot be positive that you did.
Q. How do you happen to be more positive  that I used the term lie
than that I used the term draftsman?
A. I do not know that I have been very positive as to Any part of
your phraseology.
Q. Don't you think that your memory would change the term falsehood or false into lie?
A. Whatever my memory may do, I have stated your language as well
as I recollected it.
Q. You say you were at the Butler court at the May term, A. D. 1857.
When did you say the grand jury were discharged?
A. It was on the first or second day.  I am inclined now to think it
was on the first day.
Q. Wasn't it on the second day the Clerk was reported sick?
A. I am not certain.
Q. Didn't we empannel a jury on the second day?
I)OO 
HIGH COURT OF IMPEACHMENT.
A. I think not.
Q. Was the record made up the first day?
A. I think not.  I don't know whether any record was made up at all.
Q. Was there any other reason assigne(d for a failure to do business
than the absence of the Clerk?
A. None that I recollect.
Q. Were you present when the grand jury was discharged?
A. I think I was.  I am not positive, but I think it was just before
dinner on the second day.
Q. Did you leave court before they were discharged?
A. No, sir, not till afterwards.
Q. Was it not nearly night?
A. My recollection is that it was just before dinner.
Q. Is your memory pretty good?
A. Ordinarily so.
Q. Were there any returns made by the grand jury?
A. 1 don't know.
Q. Did you say before that they did make returns?
A. I think not. I think I said that I didn't know, and I say still
that I don't know.
Q. Where were the papers belonging to the cases on the first day?
A. Well, I can't say that they were in any particular place. Some
were in the hands of the lawyers, some in possession of the Clerk, and
they were scattered here and there, according as they were wanted by
interested parties.
Q. Were any answers filed the second day?
A. I can't say whether any were filed the second day or not. It is
likely that application was made to file some answers, but whether you
received them or not, I don't recollect.
Q. Don't you remember that after I announced that I would keep the
minutes of the business myself-don't you recollect that the first thing
after this was, that you came in, asking for an order for a supply of
records, and to get some lost papers, and then I said if lawyers, seeing
the condition of affairs, would pursue such a course as this, it would be
impossible to do any business?
A. My impression is that I did, on the second cday, endeavor to get
hold of some papers. As to the rest, I don't recollect.
Q. And you say the grand jury was discharged about noon on the
second day?
A. I think so.
Q. On what day did you start home?
A. On the same day.
Q. Do you know what was done with the papers finally?
A. I have no positive knowledge.
Q. Where were they usually kept?
A. In a room adjoining the court room, separated by a partiton.
Q. Whose duty was it take charge of the papers in the absence of a
Clerk?
A. I thought it my duty to look after such as pertained to cases in
which I was employed.
Q. You say you had acted as Clerk at this court.  Were you ever a
deputy there?
A. No, sir; but I have done a good deal of recording which I was
compelled to do, on account of having a very inefficient Clerk.
Q. Wasn't there a suit there of Davis and Hlorner, a case there on
change of venue, in which there was a paper not found, after diligent
search, until the second day, and it turned up mysteriously in your
possession?
,II, 0 1 
HlIGH COURT OF IMPEACHMENT.
A. I recollect that there was inquiry made for a paper, and somebody
brought it into court. Don't know whether it turned up mysteriously
or not.
Q. Mr. Bedford, about this adjournment.  Are you satisfied it was on
the second day?
A. That is my impression.
Q. And you started home the same day, did you?
A. Yes, sir.
Q. Did you go all the way home that day?
A. I cannot say. I may have stopped at night, at my usual stopping
place, on my way home.  My recollection is pretty clear that the adjournment was about noon.
Q. If it should turn out that the grand jury were not discharged till
night, and that the court did not adjourn till the next morning, what
would you say to that?
A. Simply that I was mistaken. It is possible that I may be mistaken
about it.
Q. Well, if it should turn out that you were mistaken in this matter,
would it not be safe to conclude that you have been mistaken in a good
many other things?
A. It would be safe to conclude that in a good many other things of
this nature my recollection is imperfect.
Q. And you are certain that just after the grand jury was discharged
you started home. On what day was it that the Clerk was reported
sick?  What does your recollection tell you about that?
A. lMy recollection is that it was on the first day, when court first
opened.
Q. You think he didn't attend one day?
A. I think so.
Q. Well, what do you recollect about a request to the court to appoint
a deputy?
A. I recollect seeing a paper requesting the court to appoint Donaldson Walker as Deputy Clerk.
Q. Was it a request that the court should appoint Donaldson Walker,
or requesting the court to approve the appointment of Donaldson
Walker made by the Clerk?
A. I am not sure which it was.
Q. Wouldn't there be a great deal of difference?
A. Under such circumstances I should think not.
Q. Are you acquainted with lMr. Blount's handwriting?
A. I am.
Q. Can't you say whether he requested me to appoint a deputy, or
appointed one himself, and requested me to approve?
A. I can say that I think the legal effect would be about the same
under the circumstances.
Q. We will now go to the Ripley Circuit Court, May  termn, 1858, and
inquire about this Parker and Moore case. I understood you to say
that I stated that the instrument which evidenced the debt seemed to
have a defect upon it, an erasure of date, marked with different ink.
Now I wan't to know if that wasn't a material question in the case?
A. I believe that the fact that such an erasure existed was not an
altogether immaterial one upon the trial.
Q. Wasn't it necessary to make it appear in the bill of exceptions,
and wasn't it that a copy would not show that such a thing had been
considered by the jury?
A. I don't recollect the connection that the paper had with the matter in controversy with sufficient distinctness to say.
Q. Was the date of the instrument important?
202 
HIGH COURT OF IMPEACHMENT.
A. My recollection is that the date was not in issue.  The instrument
was used as an evidence of a contract, and I think the only question
about it was whether it had been executed by the parties.
SENATOR JONES. Was there any allegation as to the alteration of the
date of the instrument?
[Judge Jackson answered this question himself, and went on to give
a statement of the matter, which is here omitted.]
SENATOR PARSONS. I will inquire of the witness if the erasure was a
matter of controversy upon the trial? /
A. It was a matter of controversy, though I don't know how it affected
the suit. There were no pleadings, as the case was in court upon an
appeal.
JUDGE JACKSON. Are you sure it wasn't two suits?
A. This was the case, I think, that originated in the County Court.
This was the second of the two, if there were two.
Q. Wasn't both suits in the County Court?
SENATOR WATKINS requested the witness to repeat what he ]d stated
in regard to this matter, and he did so, relating the facts, substantially,
as hlie had before done in the examination in chief.
On motion of SENATOR PARSONS, the Court adjourned.
EVENING SESSION.
MONDAY, June 13, 1858.
The Court met pursuant to adjournment.
The managers and respondent attended.
The cross-examination of Mir. BEDFORD was resumed.
Q. Mr. Bedford, about this Moore case, state if you haven't given
testimony concerning it before.
A. Yes, sir. I wrote out a statement to be used before the Judiciary
Committee of the House, last winter.
Q. I will ask you if you didn't swear "that Kittrell had stated that
there was an erasure in a certain instrument of writing to which he
had referred," meaning the instrument which we have spoken of, and
referring to my version of Kittrell's testimony?
A. I don't know whether I did or not.
Q. Did you not call it an erasure?
A. I don't recollect whether I did or not.
Q. What do you call it now? 
A. I say now that there was a defect in the instrument, which made
it look as if it had been dated and then redated. It had that appearance at least.
Q. Do you call it an erasure?
A. I suppose it would be called an erasure, or a blot.
Q. What do you say I said in regard to this erasure?
A. I say that you said the fact did exist, and that you refused to sign the
bill of exceptions unless the testimony of Kittrell was made to show it.
Q. Didn't you say that I said that, whether Kittrell said so or not, it
was a fact?
A. I may have used that phraseology, or I may not. I don't recollect. It is something very like that.
203 
HIIIGII COURT OF IMPEACHMENT.
Q. When was it that you wrote a statement for the Judiciary Com mittee?
A. Sometime in February last, I believe.
Q. if you can't recollect what you said yourself then, and committed
to writing, how do you come to recollect what I said more than a year
ago-nearly two years ado?
A. When the thing to be recollected consists of phraseology, I do not
know there would be any difficulty in distinguishing that from remem bering an idea.
Q. Haven't you pretended to give my exact phraseology in this
instance, when you say that you are unable to recollect your own?
A. I pretend to give my idea then and now, in the same language,
or in language not materially different.
Q. Didn't you say that' the Judge then asked Kittrell to there state
if such was not the fact, whereupon Kittrell stated that the heading or
date of said instrument did look as if it were altered or blotched, but
did not know but that it was done at the time of writing said instru ment?"' and didn't you state that I then said, " il the witness did not
say so, yet it was the fact?"
A. As I said before, I don't recollect my phraseology. I suppose I
made similar statements, and I reckon I could now adopt them to ex press the same idea with safety.
Q. In the case of Berry vs. Griffie, in stating that 1 refused to sign the
bill of exceptions, did you say that the testimony was incorporated in
the bill?
A. I think you required them to be together.
Q. Did you say that I refused to sign the testimony?
A. Yes, sir.  You refused to sign it, and alleging as a reason that it
was impossible for you to tell what the testiAmony was, owing to the fact
that during the trial the counsel spoke so low, andl there was so much'
noise, that you could not hear.
Q. Hlad you agreed that this should be the testimony in the case?
A. Yes, sir.  I made some few corrections in the testimony written
out by Mir. Tyrell, to which he assented.
Q. Did I refuse to sign the bill because there was so much noise, or was
it because I had no perfect understanding of what the testimony had
been?
A. I cannot say why you refused; I only know  that you said the
reason was that the attorneys spoke so low, and the testimony was so
indistinct, that you couldn't tell what it was.
Q. Well, don't you recollect that you were setting where I couldn't
see you, and that it was hard for me to hear what von said?
A. Yes, sir.  There was a large cornice on the platform  where you
were, and I was sitting under it; and I recollect that you asked me  to
move my seat, saying that you couldn't hear what I said.
Q. Now let usgo to this Bartlettcase.  What did I say abom  that case?
Didn't I state that playing cards for money or liquor, or any thing else, was
not gaming within the meaning of the statute, unless there was betting?
Did you ever hear me say that betting was not an indictable offense?
A. I have often heard you speak of it, ancl give your views upon that
question.  I don't think I ever heard you iay that betting was not indictable; but I suppose you can express your opinion upon the subject
with more definiteness than I can.
Q. In all that I said upon that occasion, wiasnt it more of a conversation with the lawyers than to the jury?
A. I understood it to be addressed principally to the attorneys.
[Judge Jackson here went into a somewhat elaborate statement of
his views concerning the law of gaming, at thie conclusion of which he
4-)04 
lIGII COURIT OF IMPEACI)ENT.
asked the witness if that was not the substance of his remarks upon the
occasion referredi to, which question the witness answered affirmatively,
and the cross-examination here closed.]
MIr. KEOTT.  In this conversation which you say was addressed principally to the lawyers, did the Judge talk loud enough to be heard by
the jury?
A. Yes, sir.  Though I understood him to be addressing the lawyers
principally, the latter part of his remarks were addressed to the jury;
the part I mean in which he told them that if thev were a mind to do
so, they could find a special verdict, and he would apply the law.
JUDGE JACKSON.  Was there any other person than Orson Bartlett on
trial at this time?
A. No, sir.  No other person, I believe.
SEXATOR Fox.  In the case that you have spoken of, where there was
something said about the testimony being withdrawn, did the Circuit
Attorney spears of it as withdrawn?
A. I say that I understood from what occurred between Air. Davis and
the court, during the argument of Mir. Davis, that the testimony was
withdrawn from the jury.
Q. Who took the exceptions that you spoke of?
A. I understood Mr. Davis as not referring to it as evidence; and he
stated that although it was withdrawn there were exceptions taken.  Of
course, I could only understand that exceptions were taken by defendant's counsel.
SENATOR C('tU-RCHILL.  When ),r. Davis was proceeding with his argument, was he cominenting in the form of a supposition upon what he
admli tted was uot testimony?
A. Well, sir, he stated his proposition about thus:: Now if this man
has violated the person of the girl, and she has gone and poured this tale
of woe," just there hlie was stopped.
Q. Did he make the application of this supposed case to the case in
hand before saying that the testimony was withdrawn, or that it was not
testimony?
A. I thinki he just stated that the testimony had been withdrawn, and
that the defendant had excepted.
JU,D('.JACK0ON. Were you present when Mr. Davis stopped his speech?
A. Yes, sir, I was.
Q. How far were you from him?
A. I was about the distance from Msr.     to the wall there.  When
he stopped he walked oft
Q. Do you remember the expression he used at that time-what he
said he would or would not do?
A. He made some unkind expression. Perhaps he used some oath.
I cannot undertake to repeat it.
Q. In this G-riffie case, what was it in the motion for a new trial that
was stricken out?
A. I don't know. 
Q. WVan't it that the court had instructed the jury by telling them
that if the defendant had no title to the land he had nothing to convey?
A. I don't know.
Q. Were there any instructions given to the jury?
Mr. KNOTT.  It is not pretended there was an instruction.  A remark
in the presence and hlearing of the jury, calculated to influence their
verdict, was the thing complained of.
JUDGE J ACKSON.  Isn't it usual to merely state, as a reason for a motion
of this kind, b-ecause the court misinstructed the jury, and in this case
was not the misinstruction entered the same as if it had been given?
A. I don't recollect.
20 5 
HIGH COURT OF IMPEACHMENT.
Q. Wasn't it that way, that the motion contained a statement that
the court had misinstructed the jury, and the misinstruction set out in
the motion, thereby conveying the idea that such an instruction had
really been given?
A. I don't think that I paid enough attention to make any definite
reply to that question.
Q. You stated that in the motion there was more there than you
thought belonged to it. What was there that shouldn't have been in
the motion?
A. I believe there were reasons assigned that I didn't think had any thing to do with the case. I thought he had alleged reasons that
had no legitimate bearing in a motion of that kind.
Mr. KNOTT. When Mr. Tyrell filed his motions, I understand he
assigned a variety of reasons in support of them. Do I understand you
to say that he misstated any facts?
A. I didn't intend to convey that idea. I thought he had put a good
many reasons in that had no connection with the case, and could have
no bearing upon its decision.
Q. Did the facts, set out in the motion papers, actually exist, whether
they had any connection with the case or not?
A. I have no reason to think that they did not. There was no misstatement.  He had simply inserted reasons not necessarily connected
with his case, in my opinion.
Q. Do you recollect what the Judge said about these reasons?
A. No, sir. I cannot now recall it.
Q. Do you know whether the bill of exceptions contained the reasons
of the motion papers, copied fully in the bill?
A. I think that in place of leaving the space, and directing the insertion of the motions, they were copied in with the causes set out fully.
Q. Were not the motion papers, as copied in the bill, identical with
the motion papers filed in the cause?
A. I have not any distinct recollection of any difference.
SENATOR CHURCHILL. Did you, or not, understand the Judge to say
that the whole of Grimsley's testimony was excluded?
A. I heard him say that the testimony was excluded. I do not know
that I stated that he had stated the whole of the testimony was withdrawn.  Not having heard the testimony of Grimsley, I could not tell
from what I heard the Judge say, whether there was any limitation to a
portion of this testimony. I can't recollect whether he stated that the
whole of it was withdrawn or not.
SENATOR PARSONS.  Was the Judge in the habit of striking out formal
reasons, assigned in motions for new trials, before signing bills of exceptions?
A. I don't think he was. My recollection is that he is in the habit of
taking the motions just as they are filed. I don't think I ever knew
the Judge to strike out any reason assigned for any motion.
JUDGE JACKSON.  Did you ever see that tried before?  rid you ever
see motions filed, with reasons assigned that were immaterial, and had
no existence as facts?
A. I don't recollect ever having seen a motion presented by any one
in the same way exactly as Mr. Tyrell's.
HAMILTON SCOTT recalled and examined by Judge Jackson.
Q. You say, Mr. Scott, that you were at Butler court, in 1857? Was
the Clerk there on the first day?
A. Yes, sir. And on Tuesday he was not at his post, but was reported
sick.
Q. When did you say that the grand jury was discharged?
206 
HIGH COURT OF IMPEACHIMENT.
A. On Tuesday evening, late.
Mr. BEDFORD recalled and examined by Judge Jackson.
Q. Who was counsel besides Mr. Tyrell, in this Berry vs. Griffle case?
A. I think Mr. Wasson had managed the case principally until after
the verdict of the jury. My recollection is that he was the active
attorney during the progress of the trial.
Q. Was Mr. Tyrell an attorney in the case at all?
A. Yes, sir.  I think he was an attorney in the case.  He acted in
that capacity.
Mr. J. G. RUFF recalled and examined by Judge Jackson.
Q. You say you were on the grand jury, May term, 1857?
A. No, sir. I was not at the May term. I was there at the November
term, 1857, and also at the May term, 1858.
Q Well, at the November term, 1857, was the Clerk there the first
day?
A. He was there every time I passed in and out.
Q. Did the grand jurors, or a portion of them, after they were discharged at the November term, A. D. 1857, in Butler county, remain
some two or three days; and did they then say that they would put me
(the Judge) in Black river; and did you say that you would, for one?
The managers objected to this question, alleging that its design was
evidently to contradict the statement of Mr. Phelan upon an irrelevant
point in his testimony, and which the respondent himself had drawn
out upon the cross-examination.
JUDGE JACKSON persisted in asking an answer to the question.  He
contended that Mr. Phelan had made a statement against him for effect
which he had a right to disprove by this witness if he saw proper.
The question for the action of the Court then being, shall the
respondent be permitted to ask the question? the vote stood as
follows:
AYES-Messrs. Churchill, Fox, Gullett, Harris, Hedgpeth, Horner, McIlvaine,
Morris, Newland, Peyton, Robinson, Scott, and Wilson-13.
NoEs-Messrs. Brown, Byrne, Frazier, Goodlett, Halliburton, Hyer, McFarland, McFerran, O'Neil, Parsons, Rains, Richardson, and Vernon-13.
Absent-Mr. Johnson.
Absent on leave-Messrs. Coleman, Thompson, Wood, and Wright.
Excused from voting-M.essrs. Jones and Watkins.
There being an equal number of the Senators present voting affirmatively and negatively on the question, the President of the Senate was
called to the chair to give the casting vote, (the chair having been filled
during the ballot by Senator Richardson, President pro tem.) Upon
taking his seat, the President asked the Senators to show him what authority he had for voting in such a ease. This gave rise to a spirited
discussion, which lasted till the hour of adjournment, and at Jhe conclusion of which the President announced that he had no authority to
vote in such a ease; and hence that the proposition was lost for want
of a plurality.
Thereupon, on motion of SENATOR WILSON, the Court adjourned.
207 
HI:GIG COURT OF IMPEACHMENT.
EIGHTH DAY.
TUESDAY, June 14, 1859.
The Court met pursuant to adjournment, and was opened by procla,
mation.
The managers and respondent attended.
The examination of witnesses for the State was resumed.
TESTIMONY OF BENJA MIN TiIORNaBERG.
BE\JAMIN TIIORNBERG called and examined by Mr. Knott.
Q. Where do you live?
A. In Bollinger county.
Q. Please state if you were at the town of Bloomfield, in Stoddard
county, during the trial of Sarah Buckner, on a charge of murder.
A. I was there and in the court house a part of the time. I was in
after the witnesses were examined, and Mr. Davis was speaking.
Q. Stte, if you please, what occurred while Mr. Davis was speaking
whetler ha was interrupted, and by whom.
A. While Mr. Davis was speaking of the evidence of Mr. Grimsley,
Judge Jackson stopped him, and told him he should not allude to
Grimsley's evidence,-that it was withdrawn from the jury.
Mr. KNOTT.  YOU can take the witness.
JLDC.E JacksoN.  I don't want him, and never did want him.  He can
stand aside.  I will, however, ask one question: Are you sure I told
him that all of Grimsley's testimony was withdrawn from the jury?
A. I didn't understand it that way.
LA d;scussion as to the manner in which the cause should proceed,
growing out of the absence and sickness of several witnesses, here occupied some time, during which, at the suggestion of Senator Parsons,]
Air. PIELA,- was recalled, and examined as follows:
SEXNATOR PARSONS. It was at my suggestion, Mr. Phelan, that you
have been recalled, that I might have a mnore definite understanding of
some points of your testimony. I will now request you to state what
the substance was of Grimsley's testimony in this Buckner trial.  I do
not want the legal effect of it, but the substance of the testimony itself.
A. My answer must be very indefinite.  His testimony was in regard
to a conversation had with Sarah Buckner, the defendant, in which she
was stated to have made certain admissions.
Q. What was that conversation, and what were those admissions?
A. As far as he was allowed to testify, it was concerning connections
had with her prior to the trial.  The general effect was antagonistic to
Mrs. Buckner. 
Q. That is the legal effect of the testimony; we want the substance.
A. I confess I am unable to say what it was. I am unable to give anything like the substance of this testimony.  The impression was on my
mind vivid enough at the time.
Mr. HAnDIN.  Who wrote out this testimony?
A. Judge Jaclkson, I think.
Q. DIvd you examine it after it was written out?
A. I believe I did, and I think it was about the same in substance
that the witness stated when on the stand. I don't remember any material deviation. This was the testimony incorporated in the bill of exceptions.
208 
HIGH COURT OF IMPEACHMENT.
JUDGE JACKSON. Didn't you draw up the bill of exceptions your    self?
A. Yes, sir.  I think, however, that Mr. Moore and Mr. Davis did
something of the kind before I did so. You kindly adjourned court to
give me an opportunity to prepare the case for an appeal. I drew up a
bill of exceptions, and you rejected it because Grimsley's testimony was
not included.
Q. Isn't the testimony, as saved in the bill of exceptions, in the hand   writing of Mr. Davis?
A. I am not prepared to say. The testimony of Grimsley is, I think,
in your own handwriting.
Q.. Well, now, when he was stopped, wasn't he beginning to tell what
Mrs. Buckner had told him her daughter had said?
A. I think he was not stopped at all. The Circuit Attorney asked
permission to withdraw the testimony.
Q. That is what I mean. When you contended that this conversa   tion should be introduced, wasn't that the part that the Circuit At  torney withdrew, or wasn't that the part of the testimony that was ex  cluded?
A. You did not permit me to contend for the introduction of any
part of Grimsley's testimony.
Q. Didn't you wait for the cross-examination, expecting to bring out
this hear-say testimony, and wasn't that all that was excluded?
A. I think the whole of the testimony was withdrawn.
Q. Wasn't the witness under cross-examination when he was stopped?
A. My impression is that the witness was never in the hands of the
defendant's counsel. I know that we relied upon the statements of the
girl. It may be that Mr. Grimsley incidentally alluded to it, and that
it was objected to when he did so.
Q. Didn't the argument about Grimsley's testimony spring up at that
stage?
A. If we had any argument at all, I suppose it was then.
Q. Did either party withdraw all the testimony of Grimsley?
A. Yes, sir. I understood the Circuit Attorney to withdraw both the
witness and his testimony.
SENATOR CHURCHILL.  I would ask the witness to repeat the conversa tion between Judge Jackson and Mr. Davis, at the time of the alleged
interruption of the latter by the Judge. I want to know, particu larly, what the Judge then claimed in regard to this testimony of
Grimsley?
A. Yes, sir.  Mr. Davis was addressing the jury.  In the course of his
remarks, he referred to Grimsley's testimony by way of illustration.
The Judge interrupted him, and told him that Grimsley's testimony was
not for the consideration of the jury. Afterwards he prevented me feom
alluding to it, even for the purpose of removing any impression that it
might have made on the minds of the jurors, stating, again, that the testimony of Grimsley was not in evidence. Our next conversation on the
subject was some three weeks subsequent, when we were preparing the
case for an appeal. Then when I, on the spur of the moment, sprung
the point that the testimony of one witness uncorroborated was not sufficient to support a conviction for a capital offense, the Judge changed his
ground, and claimed that Grimsley's testimony had been evidence in the
case.  It should be known that the body of the deceased was not found.
SENATOR WATEKINS.  Did I understand you to say that the testimony of
the witness Grimsley was positively and entirely withdrawn from the
jury, when a motion was made to that effect by the Circuit Attorney?
A. That was the understanding of all parties at the time of the trial.
14
209 
HIGH COURT OF IMPEACHMENT.
Q. Did the Judge afterwards insist that this testimony should be incorporated in the bill of exceptions?
A. Yes, sir. The testimony, as originally prepared by the bill of exceptions, embraced simply the evidence of the only other witness, and
he refused to sign it until the testimony of Grimsley was added.
Q. Was there any regular motion made to withdraw the last witness?
A. It was a motion made orally during the progress of the trial.
Q. Was there any exception taken by either party to the exclusion of
this testimony?
A. I cannot remember that there was.
Q. And you say the whole of it was withdrawn, and that there was no
cross-examination whatever?
A. Yes, sir.
Q. Did you ask an instruction to tell the jurors that they were not to
consider any portion of Grimsley's statements?
A. We did not, that I recollect.
[The witness here repeated what he had before stated concerning the
whole trial, some of the Senators not having heard his previous statements.]
Mr. KNOTT.' Why didn't you object when the Circuit Attorney made
the motion to withdraw the testimony of Grimsley?
A. Because I knew when the Judge ever made a decision it was final;
and I didn't want that testimony to remain as a part of the evidence in
the cause.
JUDGE JACKSON.  Could you not have excepted, and had your except
tion entered of record?
A. I suppose it could have been done.
DANIEL Eprs recalled and examined by Judge Jackson.
Q. Are you acquainted with the handwriting of Jacob C. Blount?
A. Yes, sir, I am.
Q. From your knowledge of his handwriting, would you say that was
his signature? (showing to the witness the paper signed by Mr. Blount,
and requesting the appointment of a Deputy Clerk.)
A. I think not. It don't imitate it. It don't look to me that it is his
handwrite.
Mr. HARDIN.  Did you ever see him write his name when he was so
drunk that he had to be held up for the purpose?
A. I never did.
SENATOR Fox. In what respect is it different? Is it better? Is it worse?
Is it smoother?
A. Well, sir, this writing is not so good as Mr. Blount usually does.
This handwrite is different. It is a more open handwrite. He writes a
running hand, and this is more open-like.
TESTIMONY OF SOLOMON G. KITCHEN.
SOLOMON G. KITCHEN called and examined by Mr. Knott.
Q. Mr. Kitchen, please state where you reside, and what is your occupation.
A. I live in Stoddard county, Missouri, and have been practicing law
nine or ten years, and farming a little.
Q. Were you at the November term, 1858, of the Circuit Court of
Stoddard county?
A. Yes, sir.
Q. Were you present when the grand jury was charged?
A. Yes, sir; I heard it.
Q, You will please go on and state the substance of that charge, and
210
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HIGH COURT OF IMPEACHMENT.
particularly anything in reference to an alleged offense said to have been
committed by a lawyer, to which the especial attention of the grand jury
was directed.
A. I couldn't undertake to state the entire charge. In the course of
it the Judge alluded to some offense which he said had been committed
by a citizen of that county, a lawyer. He said this lawyer had some busi ness here in Jefferson City; he didn't know what it was,'and didn't
know whether the individual himself knew what it was; that while here
he had procured from an office plats of certain swamp lands; that he
had received from the county for this $100 or $170, which he had no
right to receive; and that such an offense was punishable by imprison ment in the penitentiary, because it was receiving money under false
pretenses. He also spoke of courts at some length, and their accounta bility for official acts. HIe said that some Judges, the Judge of the Cir cuit Court and Justices of the Peace, were exempt from indictment for
official acts; but that the County Court was of a different nature, and
when it transcended its powers, it ought to be indicted. He said that if
the County Court had paid this money to this individual without any
legal authority for so doing, the person composing that court should be
indicted. I was the person that had come to this city and obtained a
certified list of the swamp lands. For this list I paid the Secretary of'
State $65 for clerk hire, and I paid my expenses.  I was here some time
on this business. For this service the County Court struck a warrant for
$177. All the town knew that I was the individual alluded to. The
whole transaction was well known. Judge Eaker was then the only
Judge of the County Court.
Q. In this charge, in speaking about the lawyer who had committed
this offense, did he indicate any means of ascertaining who the person.
was?
A. Hie referred them to the Clerk's office and to the Treasurer, saying that they could find information at either office.
Q. What was the manner of the Judge in delivering this charge?
A. From appearances, he seemed angry or exulting, one of the two1 was unable to decide which. tie threw up his hands, gesticulated with
some energy, and spoke in a declaiming style. I was in the court house
at the time and paid marked attention.
Q. Do you practice in the Ripley Circuit Court?
A. I have practiced there some from the time the new circuit was
organized. I think I was there at court once or twice before. I have
practiced there all the time for the last three years.
Q. Were you a member of the Senate when this new circuit was
organized?
A. Yes, sir, I was.
Q. Were you at Ripley court in the fall of 1857, and in April, 1858 7
A. I was.
Q. Were you connected in any manner with the case of James Moore
vs. John Eldridge, administrator of the estate of Parker? 
A. Yes, sir. I was attorney for Mr. Moore. I believe Moore was
plaintiff, though I can't speak positively as to that. The suit was about
a note, and in it was involved an investigation about a copartnership
between Moore and Parker. The suit was between the administrator
of Parker, Mr. Eldridge, and Moore.
Q. Do you know anything about a bill of exceptions in that case?
A. Yes, sir. I drew it up.
Q. Who was the counsel on the other side I
A. Mr. Phelan. lie looked at my bill of exceptions; and we agreed
upon the testimony.  The Judge refused to sign unless it appeared in
the evidence that one of the witnesses, a Mr. rittrell, had stated acer
211 
HIGII COURT OF IMPEACHMENT.
tain fact which I contended that he had not stated.  Mr. Kittrell was
called on to settle the dispute, and when called in, he said that he had
not stated, in giving in his testimony, the fact in question; that he had
not made such a statement. The Judge, notwithstanding this, said he
would include the statement in brackets; and I think he interlined it,
and I believe he did make a scrawl around it.
Q. What was the Judge's demeanor towards counsel at this time?
A. Towards somne, it was kind; towards others, it was abrupt.
Q. Can you specifv who it was he treated kindly?
A. He seemed to treat the attorney of Mr. Eldridge very kindly.
Towards myself, his demeanor was different.
Q. What was your demeanor towards him?
A. I was as mild as I could be.
Q. Did you hear Kittrell testifying in this case at the time of the trial?
A. Yes, sir.
Q. Had he made such a statement as the Judge wished to make a
part of the testimony in the bill of exceptions?
A. No, sir, he had not. He interlined the bill himself.
Q. Were there any other witnesses in the case besides Kittrell?
A. I am not sure whether Kittrell was the only witness or not-I
don't recollect; but I believe Kittrell knew more about the things in
controversy than any other witness.
Q. Were you at Ripley Circuit Court in April, 1858, pending the trial
of William Kinsey for grand larceny?
A. Yes. I assisted in the defense of Kinsey, at that court. There
were four or five attorneys on the side of the defense. I can now mention Mr. Fox and Mr. Tyrell as having been thus engaged.  I am not
sure whether Mr. Bedford was engaged in it or not.
Q. State if you please whether any difficulty occurred during the trial
of this case in regard to taking down the testimony.
A. About the time we made an arrangement to take down the testimony
Q. Why did you want the testimony taken?
A. We wanted to have it taken down as it was delivered.'We had had
a good deal of trouble to get a verdict in the case, and it was not unusual
to have unpleasant difficulties as to what the testimony was in cases.
When the first witness came on to be examined, some one spoke to
him and told him not to be too fast, but to make his statement so as to
give time to have it written down. The Judge remarked that the witness was not put there for the lawyers to reduce his testimony to
writing, but to give evidence for the court and jury. After the testimony had been gone through with, he then remarked that it could be
reduced to writing, if the attorneys saw proper to do so.
Q. Had there been a previous trial of the same case?
A. I don't know now whether there had been or not.
Q. What was Judge Jackson's demeanor to the coupel during this
trial?
A. I thought it quite rude to some.  Mr. Fox was stopped in the
course of his argument once or twice, I think; I don't recollect the
cause. He was making some illustration when the Judge interrupted
him, and they had some words; after which he was proceeding to argue
his case, when the Judge ordered him to take his seat.
Q. Didl you observe any other manifestation of harshness then?
A. Not that I recollect, at this trial.
Q. Were you at the October term, 1857, of the Ripley Circuit Court?
A. I was.
Q. Did you see David M. Fox there?
A. Yes, sir. He has been there every term that I have been there.
212 
HIGH COURT OF LIMPEACHMENT.
Q. Did you observe at that term any transaction between the Judge
and Mr. Fox, involving a charge of perjury or lying?
A. Either at that term or some other of the same court-I cannot
now be positive as to the time-Mr. Fox had filed an answer or a repli       cation in some cause in which he was interested. The Judge was ex      amining the paper, and asked Mr. Fox if he had written it. Mr. Fox
advanced up very near to where the Judge was sitting, near enough to
have a sight at the paper, and he perhaps made an affirmative  reply,
when the Judge told him that if he wrote it, he had sworn a lie him      self, or made his client do so.
Q. Was this in open court?
A. Yes, sir. There were a good many persons in the court house at
the time.  It was about the middle of court.
Q. What was Mr. Fox doing?
A. I don't recollect. He wasn't addressing the court. The case in      volving the paper had just been called.
Q. Were you at Butler Circuit Court, May term, A. D. 1858?
A. Yes, sir.
Q. Were you in court during the trial of Gibson vs. Dunn?
A. I was in court when the case was first opened, and in after dinner.
Q. Who were the counsel for the parties engaged in that suit?
A. I think Air. Phelan, Mr. Bedford, and Mr. Walls appeared for
Dunn.  Mr. Fox and Mr. Dennis, if I recollect rightly, were for the
plaintiff  Immediately after dinner the Judge came in very much ex      cited; walked on to the bench, took off his hat, and remarked that Mr.
Phelan was under charges, and would be held to answer, or would be
expelled from the bar, or something of that kind. He notified him
that he would be held to answer for tampering with the grand jury.
Mr. Phelan got up, and as he rose, the Judge told him to sit down, and
go on with his case. I think he stated that the charge was either false
or a lie, as he got up from his chair.
Q. Do you practice at Dunklin Circuit Court?
A. Yes, sir, sometimes.
Q. Were you counsel in the case of the Point Pleasant and Dunklin
County Plank Road Company vs. Moses Farrar?
A. Yes, sir. I was for defendant.
Q. What became of that case?
A. It was sent on change of venue to Pemiscotcounty. The grounds
of the petition were prejudice on the part of the Judge. I am not cer     tain who presented the petition, but it is my impression it was Mr. Bed     ford. It may have been some one else. Mr. James Walker, I believe,
was representing the road company, and I think Dr. Horner was in the
case, on one side or the other.
A. Do you know whether there was any agreement of counsel as to
where the case should be sent?,
A. Yes, sir. There was an agreement that the case should go to either
Scott or Bollinger county.
Q. Why?
A. Because either county was easier of access, going by horseback,
and much more convenient to all parties.
Q. Why would either be more convenient? Is there any difficulty
in going from Dunklin to Pemiscot?
A. Yes, sir. There is a very large swamp, which is impassable the
greater part of every year. From the time the fall rains set in, until
]the following July, in order to get from Dunklin to Permiscot, horse'ack, one has to go around by way of Cape Girardeau, a distance of two
,  hundred miles, or more.
Q. Where do the witnesses in that case reside?
213
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HIGH COURT OF IMPEACHMENT.
A. I think their only witness lives in Kennett. Mr. Walker is the
agent of the company, and perhaps the only witness of the company.
Counsel for the company is Mr. Walker, and, I believe, Mr. Arthur.  He
was then staying at Bloomfield.  There was a Mr. Richardson in the
case, but I don't think he was there at the time it was moved.
Q. Were you counsel in the case of Smith vs. Cude?
A. Yes, sir.  That case was also sent to Pemiscot county.
Q. Was anything said in relation to the inconvenience that would
result from sending the case there?
A. Yes, sir. Mr. Phelan and I were present, and we both insisted on
the case going to Scott or Bollinger county.  We stated our reasons, so
far as the court would hear them; that we couldn't attend there, because
the court in that county conflicted with the courts in our own circuit
and the difficulty of access, also.   Defendant's counsel urged very
strongly that they couldn't attend there, on account of the swamnp, and
because they would have to be at another court at the same time. None
of us are in the habit of attending court in Pemiscot county, except
Mr. Bedford, who has perhaps gone there occasionally.
Q. Was the court apprised of these facts?
A. Yes, sir. I can say that he was well apprised of them.
Q. Were you at the Circuit Court in Stoddard county, at the Novemlber term, 1858?
A. Yes, sir.  I was there.
Q. Were you connected with the case of Berry vs. Griffie?
A. I didn't appear in the case, though I was spoken to. I was in
court part of the time only during the trial.
Q. Well, Mr. Kitchen, I will now ask you to state, as succinctly as you
can, the facts within your knowledge in connection with the writ of mandanaus vs. Jonas Eaker, made returnable to the May term of this court?
A. Yes, sir.  I saw the writ of mandamus against Judge Eaker.  It
was concerning - road. When the case was called by the court, I was
in, and suggested that the writ had not been served. I made this suggestion as the friend of the court. He appeared to get excited, and said
that he didn't want my friendship.  I replied that he wanted mine
about as bad as I wanted his.  About that time Mr. Phelan came in,
and we had some discussion about the matter. I wanted to prevail upon
him to look at the writ himself.  I was assured he must see there was
no service.  Not being able to accomplish anything, I left Mr. Phelan
and him contending about the matter, and directly he ordered Mr. Phelan
to sit down. He then went on to say it was a kind of proceeding in
which parties could not appear by attorney. He said a good many
things, which I couldn't attempt to repeat, and appeared to be excited
and angry.
Q. What did he do with the case?
A. He ordered an attachment, after making some remarks about its
being a matter between the two courts. After the attachment was
issued, Mr. Eaker was arrested and kept in the custody of the Deputy
Sheriff about half an hour, or perhaps an hour. The Judge then or dered the Sheriff to bring him into court, and after this was done, he re marked that, if he was not in contempt, he was ignorant of his duty.  Mr.
Eaker told him he didn't intend any contempt of court. After talking
a while about it, the Judge told him he could come in the next morning
and answer upon the copy of the writ with which he was served, and
he was then released. He made the return the next morning, I believe. 
Q. Do you know what return he made of the copy?
A. I do not; I never saw it afterwards.
Q. Were you at the November term, 1857, of the Stoddard Circuit
214 
HIGH COURT OF IMPEACHMENT.
Court, at the time Sarah Buckner was tried on an indictment for
murder?
A. I was not there at the time of the trial. After the verdict, the
court was adjourned to some time in December. I was present when
the bill of exceptions was presented to the court for signature.
Q. Please state what occurred between the court and attorneys in rgard to that bill of exceptions.
A. The Judge said he would not sign the bill unless it was made to
contain the testimony of a witness that Mr. Phelan contended was excluded. Mlr. Phelan said the evidence was not commented on byattorneys in the argument of the case; that it ought to to have been excluded, and that it certainly was excluded.  Whether the Judge made any
reply I do not know. Hle took an opposite ground, and refused to sign
the bill of exceptions until it was made to conform to his representations of the facts.
SENATOR PARSONS.  At the time the Judge delivered his charge to the
grand jury of Stoddard county, at the November term, A. D. 1858, had
there been, or was there then, any unfriendly feeling between you and
the Judge?
A. There had been for some time-for over a year.
CROSS-EXAMINED BY JUDGE JACKSON.
Q. MIr. Kitchen, you said that in my charge to the grand jury I was
angry-about that county warrant, I mean?
A. Yes, sir, it seemed to me you were either angry or exulting.
Q. How did it seem so?  What cause had you to think so?
A. It seemed to me that such was the case, from the flush in your face,
and your throwing up your hands.
Q. Don't I gesticulate always in every charge, more or less?
A. I believe you generally gesticulate some.
Q. Don't I speak with more energy at some times than at others? and
can't I do that without being angry?
A. I have seen you speak with more zeal upon some occasions than
upon others.
Q. Did you not hear me, at the August term of the Stoddard court,
charge the grand jury?
A. Yes, sir; I believe so.
Q. Did I not then single out a particular offense, and comment at
length upon its character and the punishment connected with it?
A. Yes, sir; I  Q. Did I not gesticulate then? and did I not go into the particular
points likely to be presented in a certain case? and did I do anything
more, or was I more excited or angry, in this warrant matter? Did I
even do as much gesticulating, or was my face as much flushed then, as
when I was charging the grand jury in the Davis case?
A. In the Davis case you commented at length upon circumstantial
evidence; and that was a special term of the court, held for a special
purpose.
Q. Did I as pointedly speak about the warrant matter as I did then?
Did I not tell them that it was their duty to indict if the facts were as I
had understood them to b?
A. I don't know that you made any particular reservation on that
score.
Q. Did I state how I understood them to be?
A. You said you had reason to believe that the individual referred to
had procured the plats without any proper authority, and had received
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HIGH COURT OF IMPEACHMENT.
$170 for pretended services to the county, while he was transacting his
own business, which was obtaining money under false pretenses.
Q. Did I not state that he had gone to Jefferson City on his own busi ness, or on business for Dunklin county, and that he had not gone on
business for that county?
A. What I heard on that subject was, that you didn't know what my
business was here, and you said, "I don't know whether he knows him self."
Q. Who employed you to come here and get those plats?
A. There had been an order for a sale of the swamp lands belonging
to that county, and it was necessary to have a certified list of the swamp
lands patented. A number of citizens of the county had farms made on
these lands, and the whole business was in such a condition that it re quired some man acquainted with it to come up here and attend to it.
I agreed to come if they would pay me my expenses and for my time.
Q. Did you not intend to come up here anyhow, on business for Dunk lin county?
A. I stated that I was going to look into some business for that county.
Q. What was the amount of the warrant you received?
A. One hundred and seventy-seven dollars.
Q. Hadn't you and Phelan been attorneys for Dunklin county? and
wasn't this warrant issued to you jointly?
A. It was. He said that he would attend to my business at Poplar
Bluff, and in consideration of this, the warrant was issued to us jointly.
Q. Were you not partners in the Dunklin county swamp land business?
A. We were.  Mr. Eaker said that he wished one of us to come upthat he didn't care which one it was; and by agreement I came.
Q. Was there any order made by the County Court before you came?
A. Not that I know of. I procured them on my own name.
Q. Did you get plats for yourself?
A. I did not get any plats. I got certified lists of the county.
Q. Well, had you got them before any order was made for procuring
them?
A. I think it was a week or so after the order was made. I had received them before I drew the warrant.
Q. Well, now with regard to this Eldridge and Moore matter.  What
did you say that suit was about?
A. About a note involved in some copartnership transactions between
Moore and Parker, whose estate Eldridge was administering.
Q. You say there was a difference in regard to the testimony of Kit
trell, as to whether he had stated anything about a certain erasure or
blot upon an instrument which was a part of the evidence in the cause?
A. Yes, sir.
Q. Well, now, as to Kittrell, after he came in and said that the instrument was just as he had always seen it, wasn't it necessary to show that
fact in the bill of exceptions? Wasn't the paper in testimony before the
jury?
A. Yes, sir; it was.
Q. Well, then, wasn't it necessary in making up the testimony for a
bill of exceptions that the fact of this erasure, which was a matter of inspection by the jury and a matter of evidence, should go into the bill?
Mr. KNOTT objected to thQ question.
JUDGE JACKSON reduced it to writing, as follows:
Was it not necessary to state in the bill of exceptions, or in the evidence, for
the purpose of making a full bill of exceptions, the fact of the erasure existing
in the instrument of writing?
216 
HIIGH COURT OF IMPEACHMENT.
The question was decided improper by the following vote:
AYEs-Messrs. Harris, Hedgpeth, Jones, Morris, Newland, Peyton, Robinson,
Scott, Wilson, and Wood-10.
NOES-Messrs. Brown, Byrne, Churchill, Fox, Frazier, Goodlett, Gullett, Halliburton, Horner, Hyer, McFarland, McFerran, McIlvaine, O'Neil, Parsons,
Rains, Richardson, Thompson, Vernon, and Watkins-20.
Absent-Mr. Johnson.
Absent on leave-Messrs. Coleman and Wright.
The cross-examination then proceeded.
Q. Why was it put in brackets?
A. When Mr. Kittrell came in he said that he had not made any state
ment when upon the witness stand; you stated that you would make
the fact show in the evidence, anyhow.  I didn't hear any reason for
putting it in brackets.
Q. Was not that instrument of writing copied into the bill, and would
the erasure appear on the copy?
[Mr. Knott objected to this question as argumentative, and after some
little discussion it was waived.]
Q. In this Kinsey case you say the attorneys wished to take down the
testimony, and that I told them the witness had not been brought there
for that purpose. Now, if that was my first statement, did I not then go
on and say that they could let the witness make his statement of any
particular fact-that when he was through the attorneys should have
ample time to take it down?
A. After the State got through, you told us we might take down the
testimony if we wished. I don't remember that you made any proposition such as you describe.
Q. Did you ask for more time to take down the testimony?
A. If I did not, some one else did, and you replied at first as I have
before stated. After the witness was through, I think, perhaps you said,
" now you can reduce it to writing, if you want to."
Q. Well, wasn't the testimony written down?
A. Mr. Tyrell had reduced as much of it to writing as he could, though
it was not taken down as fully as we wished it.
Q. Don't you recollect that I said that the general practice of making
witnesses repeat the words of their statements slowly, so as to have
them written down, was embarrassing, and that the better way was to
let the witness proceed to the conclusion of his statement, and then
stop him until it was written out?
A. I don't recollect that you said anything about the general practice,
or about the effect of taking down the testimony of a witness.
Q. You state that my conduct on this occasion was harsh to Mr. Fox.
What was it that was harsh?  What was he saying at the time to provoke harshness on my part?
A. He was making his speech, and you stopped him. He proceeded
a little further, and you stopped him again, and ordered him to sit
down.
Q. Wasn't he making an assertion then that the court was using its
influence to bring about a conviction?
A. I don't recollect what it was he was saying.
Q. When I stopped him, didn't he claim a credit on his time for the
interruption, saying that he should extend over his time on account of
it? and the second time when I spoke to him, didn't he say he was alluding to me?
A. I don't recollect anything of the kind. I thought on that occasion he was mild enough.
Q. Well, if he was mild enough on that occasion, how is he on others?
217 
HIGH COURT OF IMPEACHIENT.
At the other time, when you say I told him that he lied, or caused his
client to lie, how did he behave then?  What did you say he was
doing?
A. I stated upon my examination in chief, that when you called his
attention to the paper you had been examining, he walked up towards
where you were sitting, and about that time you said that, if he had
written the paper, he had either lied or caused his client to lie.
Q. Didn't I tell him that the paper and the affidavit contradicted one
another?
A. I don't recollect that you did.
Q. Are you sure I used the word lie?  Wasn't it falsehood, or some
word less opprobrious than lie?
A. I am sure you said he had sworn a lie, or made his client do it.
Q. You state that I had used very rough words, and very harsh words.
How do you distinguish between rough and harsh terms?
A. I aimed to convey the same idea with both words.
Q. Well, what would you mean by a smooth word?
A. I would mean a word having in its connection a conciliatory
effect.
Q. Did you ever hear me use a sharp word?
A. I think I have repeatedly.
Q. Well, what does it take to make a sharp or a rough word, or a
harsh word?  What effect does a sharp word have on a man?  Does it
make him jump or shrink?
A. If it comes in anger, it makes me angry, and I am apt to reply
with words of the same kind.
Q. How do you think it is about others? Would it make a similar
impression upon others, do you think, if you were to use harsh words?
How do you tell when a word is sharp?
A. In various ways. I tell from gestures, looks, and the connection
in which they are used.
Q. Are you not something of a mathematician?
A. Not mnuch of a one.
Q. Did you ever see an angular word, a word with three corners?
SEXNATOR Fox. I must remonstrate against this kind of proceeding,
as a waste of time, capital and dignity.
JUDGE JACKSON. It must be remembered that great latitude is allowed
on a cross-examination.
Q. At this Butler case, the Gibson rs. Dunn case, you state that when
Mr. Phelan came in after dinner  A. No, when you came in. I didn't say anything about Mr. Phelan
coming in.
Q. Well, don't you know that I notified him that he was in contempt,
and that at a proper time he would be called upon to answer?
A. You notified him that he was under charges-that he had been
tampering with the grand jury.  He jumped up and said something,
what it was I am not prepared to state exactly; I think it-was that the
charge was false, or that it was a lie. Then I think you told him to sit
down and go on with the case.
Q. What did he do then?
A. He set down and wrote an affidavit charging Mr. Bill Henley with
divulging the secrets of the grand jury.
Q. Had he not done this before?
A. No, sir. I know that he made an affidavit before the Clerk immediately after this.
Q. What time of day was this?
A. It was directly after dinner. It happened immediately on your
return from dinner.
218 
HIIGHt COURT OF IMPEACHMENT.
Q. Did I fine him?
A. I don't think you did.
Q. Did I allow him to go on with his case?
A. You told him he should have an opportunity to defend himself
afterwards, and that he might then go on with the case.
Q. In these Dunklin county road cases, which party applied for a
change of venue?
A. I don't know which.
Q. Where did the plaintiff live?
A. The plaintiff was a road company.
Q. Well, then, for whose use was the suit prosecuted? Was it not
for the use of Mr. Clark?
A. Mr. Clark was a contractor.  I don't know that he was more particularly interested than others.
Q. Well, where do the stockholders of that company live?
A. Dunklin county is one; and they live in Pemiscot and New
Madrid, and scattered about over the country there.
Q. Wouldn't it have been as convenient for them to have the casethose on the east side of the swamp?  Was not Mr. Moore in the road
ease?
A. I don't recollect.
Q. Wouldn't it be as convenient for him to go from Cape Girardeau
to attend the trial, as to attend it at Kennett?
A. He would have about the ame distance.
Q. You say that yourself and Mr. Phelan told me you wanted the
case to go to Scott or Bolling,er. Now, wasn't there a proposition that
the case should go to the Cape or to Bollinger, and then Horner
suggested New Madrid? and wasn't it because none of these counties
seemed to suit all parties that I sent the case to Pemiscot?
A. I have no recollection that such was the case.
Q. Wasn't Phelan, Walker, and Horner, all on the same side? and
wasn't they glad when the case was sent to Pemiscot?
A. If the others were in the case, Mr. Phelan took the lead, and he
was not glad, I am sure.
Q. Well, in this other case.  Where does Johnson or Smith live? Did
not the party conducting the suit live in Tennessee?
A. I am not prepared to say. If he did live in Tennessee, the most
convenient county was probably Pemiscot.
Q. Well, we will now go to this mandamus case. WVhen you suggested
that there was no return, what was my first expression in reply?
A. I suggested that there was no service, and asked you to look at
the return, and satisfy yourself that there was no legal service. As to
your first expression after this, I don't recollect what it was; but I
know that after some considerable jowering, you said that it was not
an attorney's business, and that it was a matter exclusively between the
two courts. 
Q. Well, who did this jabbering that you speak of?
A. You did your share.
Q. What do you call jabbering?
A. I presume it is not necessary to give a definition.
Q. Well, did you appear in the case as an attorney?  Did you do any
of this jabbering as an attorney?
A. I did what I did as Solomon Kitchen.
Q. Well, what occurred after the jabbering you speak of?
A. I wished you to see how the writ was served, and after some con siderable contention, you said the case was one in which counsel could
not appear.
. 219 
HIGH COURT OF IMPEACHMENT.
Q. Didn't I state that whatever his case was, he should not keep it to
himself, but he must come in and make a return to the writ?
A. You said it was a matter between you and him, with which an
attorney should have nothing to do.
Q. Didn't I state that in reply to your first expression that you ap  peared in the case as the next friend of the court?
A. I didn't put in that word "next friend" of the court. I claimed
an undoubted right to make a suggestion of the failure of service, and
that seemed to anger you.
Q. Did you do anything else? I believe you said a moment ago that
you jabbered?
A. You may call it as you please.
Q. When Mr. Eaker came in, didn't he offer to make a return on the
copy?
A. You had him brought in by an officer, and proposed to release
him yourself upon this condition.
Q. Well, when he was brought in on the attachment, didn't he ask
till the next morning, and I told him he could have it? And wasn't
this matter of disturbance (I mean all the conversation) before an
attachment issued? Wasn't you and MIr. Phelan trying to prevent an
attachment from being issued?
A. No, sir. We were trying to show that there was no service of the
writ of mandamus. You had just called the case.
Q. Did you enter an appearance for Mr. Eaker?
A. You said I shouldn't do it. You said I had nothing to do with
the matter; that it was a peculiar kind of a case; that lawyers had
nothing to do with it; and in talking to Mr. Phelan, you told him  to
shut his mouth and sit down.
Q. Didn't I ask him if it wasn't possible for him to keep his mouth
shut? and wasn't that what I said, instead of saying to him to keep his
mouth shut?
A. You made the remark I have repeated.
Q. Had there been any unkind feelings between us before this occurrence?
A. Yes, sir, there had been.
Q. What gave rise to them?
A. Your treatment of me.
Q. My treatment in court or out?  In what cases?
A. In a number of cases. I can name the case of Johnson vs. Sness;
in the mandamus; in the case of Johnson and Dickens, and in a good
many others.
Q. In the case of Johnson and Dickens, what did I do to give rise to
hard feelings?
A. You threw me entirely upon the mercy of the opposing counsel
in the matter of preparing the testimony in that case for a bill of exceptions. Such had not been your practice in any other instance.
After the testimony was prepared, you wouldn't even look at it until
the opposing counsel had consented that it was correctly set out; and
when there was a difference between us, you wouldn't decide.
Q. Didn't I say this: that I wouldn't sign the testimony for you, in
this Johnson and Dickens case, while the other party was protesting that
the testimony was not correctly set out? and when I learned that you
made a good many remarks out of court in regard to my course, didn't
I remark then that until I was satisfied you had the testimony correct,
I wouldn't sign it?
A. I recollect it as I have stated it.
Q. Well, in court what was the difficulty?
A. A part of the difficulty was in getting an appeal.
220 
HIGH COURT OF IMPEACHMENT.
Q. Didn't it grow out of your obstinate manner of pressing points
that I had decided against you?
A. No, sir.  You wouldn't decide when there was a difficulty between
myself and other counsel as to what the testimony was, and still
stronger, after we had agreed upon it, you put things in there that
didn't belong. The first difficulty was because you wouldn't decide
and the second because, after writing out the testimony and agreeing
upon it with the other counsel, you wouldn't sign the bill till you had
put things in there that the witnesses said that they had never stated.
Q. Well, now, don't you think that I was right, or that I thought I
was right?
A. My thoughts about that matter were, that you wanted to support
your judgment with testimony which had not been before the jury.
Q. Didn't the jury decide the case?
A. Yes, sir.
Q. Were there any instructions given to the jury?
A. No, sir. And you wouldn't grant a new trial, although the judgment was against the weight of evidence. The Supreme Court thought
so too, for the judgment was reversed, and the case remanded.
[Judge Jackson here commented at some length upon the facts stated
by the witness; but as his remarks were not in the form of questions,
they are here omitted.]
Q. Have you any unkind feelings towards me now?
A. I have such unkind feelings as are naturally occasioned by wrongs
done me without cause. Our personal relations are unfriendly.
Q. Have these feelings not grown out of personal matters that happened out of court?
A. I have heard things out of court which I never paid any particular
attention to. All hard feelings between us have grown out of what I
considered an erroneous course on your part.
Q. Have you not expressed yourself as favorable to me as a Judge?
During the fall of 1855, and the spring of 1856, during the two first
rounds on the circuit, didn't you pass high encomiums on my course?
A. Yes, sir. Up to the third round on the circuit, I saw nothing in
you to censure.
Q. Well, Mr. Kitchen, don't you urge your views with a good deal
of zeal?
A. Yes, sir, I believe I do.
Q. Don't you get excited, and when you are thwarted, go to extremes?
A. When I think I am badly treated, I get excited. I don't think I
ever went to extremes but once in my life.
Q. Well, Mr. Kitchen, these unpleasant feelings-was it what you
conceived to be errors on my part?
A. I thought it was bad treatment.  I thought at some times your
errors were willful, and sometimes I didn't know. They were so often
against me, and not against others, that I concluded I was aparticular
object of spite.
Mr. KNOTT.  Tell us about this Davis case.  Was he in custody when
the Judge charged the grand jury concerning the charge alleged against
him?
A. Yes, sir; he was then under recognizance. The court was especially called for the purpose of trying him, and he was either in jail or
in custody.
Mr. HARDIN. Jn reference to this interlineation in the bill of exceptions, made b'y tjudge Jackson in Kittrell's testimony, was there anything there to show it was not a part of Kittrell's testimony?
A. Nothing but a scrawl. I didn't see the bill afterwards. I took it
221 
HIGH COURT OF IMPEACHMENT.
that the scrawl only showed that the interlineation was not a necessary
part of the sentence.
SENATOR WATKINS.  Did I understand you to say that this was an interlineation affecting the date of the instrument?
A. The interlineation was in reference to an obscuration of the date.
The testimony of Mfr. Kitchen was here concluded.
On motion of Mr. KNOTT, and by unanimous consent, it was
Ordered, That the managers be permitted to discharge such witnesses on the
part of the State as they may deem proper, with the consent of the respondent.
Benjamin Thornberg, Hamilton Scott, A. J. Ruff, and Daniel Epps,
witnesses, were discharged under the foregoing rule.
The managers not being ready to proceed with the case, and having
announced the fact,
SENATOR CHURCHILL moved to adjourn till tomorrow morning at 8
o'clock, which was decided in the negative by the following vote, the
ayes and noes having been demanded by Senator McFerran:
AYES-Messrs. Brown, Byrne, Churchill, Halliburton, Harris, Hedgpeth, Hyer,
Jones, McIlvaine, Parsons, Peyton, Rains, Robinson, Scott, and Watkins-15.
NoEs-Messrs. Fox, Frazier, Goodlett, Gullett, IHorner, McFarland, McFerran, Morris, Newland, O'Neil, Richardson, Thompson, Vernon, Wilson, and
Wood-15.
A,,sent-Mr. Johnson.
Absent on leave-Messrs. Coleman and Wright.
[RICHARDSON in the chair.]
SENATOR SCOTT then moved to adjourn until 4 o'clock in the afternoon,
which was decided in the negative by the following vote:
AYEs-Messrs. Brown, Byrne, Harris, McIlvainle, Parsons, Peyton, Robinson,
and Watkins-8.
NoES-Messrs. Churchill, Fox, Frazier, Goodlett, Gullett, Halliburton, Hedgpeth, Horner, Hyer, Jones, McFarland, McFerran, Morris, Newland, O'Neil,
Rains, Richardson, Scott, Thompson, Vernon, Wilson, and Wood-22.
Absent-Mr. Johnson.
Absent on leave-Messrs. Coleman and Wright.
SENATOR GOODLETT then moved to adjourn until the regular hour,
which was lost.
On motion of SENATOR WATKINS, the Court then adjourned until 8So'clock to-morrow morning, by the following vote, the ayes and noes
being demanded by Senator O'Neil:
AYEs-Messrs. Brown, Byrne, Churchill, Gullett, Halliburton, Harris, Hedgpeth, Hyer, Jones, McIlvaine, Parsons, Peyton, Rains, Robinson, Scott, Vernon,
and Watkins-17.
NoEs-Messrs. Fox, Frazier, Goodlett, Horner, McFarland, Mclerran, Morris, Newlard, O'Neil, Richardson, Thompson, Wilson, and Wood-13.
Absent-Mr. Johnson.
Absent on leave-Messrs. Coleman and Wright. 
222 
HIGH COURT OF IMPEACHMENT.
NINTH DAY.
WEDNESDAY, June 15, 1859.
The Court met pursuant to adjournment, and was opened by proclamation.
The managers and respondent attended.
On motion of Mr. HARDIN, it was
Ordered, That Eugene Donnelly, special messenger appointed to serve the attachment against the witnesses, Davis and others, be required to make return to
this Court how he has discharged his duty under the same.
J. P. Conrand, witness on behalf of the State, was discharged under
the rule.
Mr. EUGENE DONNELLY stated orally in Court the manner in which he
had served, or attempted to serve, the attachment placed in his hands.
It appearing that two witnesses for the State, Messrs. Davis and
Moore, would not probably be in attendance before Thursday evenings
a short discussion ensued as to the manner in which the trial of the
cause should proceed. It was finally determined that the managers
should now offer what documentary evidence they had, and that the
respondent should thereupon proceed with his opening remarks and
his evidence, with the understanding that when the absent witnesses
for the State arrived, they should be examined.
Mr. HARDIN, in accordance with the arrangement, offered in evidence
the following copies of several records, which were read by the Secretary of the Senate from his desk:
THE STATE OF MISSOURI VS. ORSON BARTLETT.
Record of the pleas, proceedings, orders, and judgments of a special term of the
Circuit Court, begun and held at the court house, in the town of Bloomfield,
in Stoddard county, in the Fifteenth Judicial Circuit of the State of Mis   souri, on Monday, the 9th day of August, A. D. eighteen hundred and
fifty-eight, before the Hon. Albert Jackson, Judge of the Circuit Courts for
the circuit aforesaid, which said court was ordered to be held by the Judge
thereof, in conformity to law.
Be it remembered, that on the 14th day of August, A. D. 1858, at said special
term of said Circuit Court, held in August, 1858, before the Hon. Albert Jackson, of said court, among others, the following proceedings were ha, to wit:
The grand jury returns here into court the following bill of indictment, to wit:
The State of Missouri,
Orson  versus           Indictment for Gaming.
Orson Bartlett, Albert Jackson,
Isaac Brand, and David G. Hicks. J
A True Bill.
Which said indictment is in words and figures following, to wit:
The State of Missouri, )
Fifteenth Judicial Circuit,  ss.
In the Circuit Court of Stoddard county, August term, in the year of our Lord
one thousand eight hundred and fifty-eight.
223 
HIGH COURT OF IMPEACHMENT.
The grand jurors of the State of Missouri, empanneled and sworn to inquire
within and for the body of the county of Stoddard, upon their oath present:
That Col. Orson Bartlett, Hon. Albert Jackson, Isaac Brand, and David G. Hicks,
all late of the county of Stoddard, in the State of Missouri, not having the fear
of God before their eyes, but being moved and seduced by the instigation of the
devil, on the first day of May, in the year of our Lord one thousand eight hundred and.fifty-eight, with force and arms, in the back room of Thomas Ligget's
grocery, at the county of Stoddard, in the State of Missouri, did willfully,
deliberately, and of their maliee aforethought, then and there bet whisky; to
wit, four glasses or drinks, of the value of five cents; but for [which] whisky
they the said Col. Orson Bartlett, Hon. Albert Jackson, Isaac Brand, and David
G. Hicks paid twenty cents, at and upon a certain game of chance then and
there played, called cards, or at and upon a certain gambling device then and
there being, called cards, adapted, devised, and designed for the purpose of
playing games of chance for money and property. And so, the grand jurors
aforesaid, upon their oath aforesaid, do say that Col. Orson Bartlett, Hon. Albert
Jackson, Isaac Brand, and David G. Hicks, then and there, in manner and form
aforesaid, willfully, deliberately, premeditatedly,  and of their malice aforethought, did, in the back room of Thomas Ligget's grocery, bet four glasses of
whisky or good grog, of the value of five cents, against the forms of the statute
in such case made and provided, and against the peace and dignity of the State
of Missouri.
D. G. HICKS, Circuiit Attorney.
On the back of which said indictment is the following endorsements, to wit:
"(10.) State of Missouri vs. Col. 0. Bartlett et. al. Gaming. A True Bill.
James L. Hale, foreman of the grand jury.  Witnesses-James V. Odell, Thomas
Liggett.  Filed August 14th, 1858.  Reuben P. Owen, Clerk."
And afterward, to wit, on the 16th day of August, A. D. 1858, at the August
term, 1858, of the Circuit Court of said county of Stoddard, before the Hon.
Albert Jackson, Judge, the following proceedings were had in said cause in court,
to wit:
The State of Missouri,
versus          Indictment for Gaming.
Orson Bartlett..
The Circuit Attorney and the said defendant appears, and the said defendant
having heard the said indictment read to him, says of the said indictment and
the matters and things therein charged against him, he is not guilty, and of this
he puts himself upon the country for trial, and the Circuit Attorney doth the
like; whereupon comes a jury, to wit, 1 George C. Neill, 2 Rear B. Hickman, 3
Jiles J. Harvey, 4 B. G. Womble, 5 Robert McCollvine, 6 James Hodges, 7 Samuel
Gibson, 8 Francis M. HIodges, 9 James W. Childress, 10 Thomas J. Walker, 11 R.
C. Boyd, 12 John S. Galaway, twelve good and lawful men, who being duly
elected, tried, and sworn to well and truly try this cause, and having heard all
the testimony offered; whereupon the Circuit Attorney says he will not further
prosecute this indictment. It is therefore considered and adjudged by the court
that the said defendant of the said indictment and the matters and things therein
charged against him be hence discharged, and go thereof without day.
State of Missouri, }S
County of Stoddard, Jss
I, Reuben P. Owen, Clerk of the Circuit Court in and for the county.of Stoddard, in the State of Missouri, do certify that the foregoing is a true and perfect
transcript of the record and proceedings in the foregoing case of the State of
Missouri vs. Orson Bartlett, indicted with Albert Jackson et. al., as the same
appears now remaining in my office.
,-'- I    In testimony whereof I have hereunto signed my name and affixed
I.S   a the seal of said Circuit Court, at office in Bloomfield, county and State
I   aforesaid, this 24th day of January, A. D. 1859.
REUBEN P. OWEN, Clerck.
224 
HIGHI COURT OF IMPEACHMENT.
JOHNSON et al. vs. JONAS EAKER.
Be it remembered, that on the 22d day of March, A. D. 1858, was filed in the
office of the Clerk of the Circuit Court of Stoddard county, in the State of Missouri, the following papers in the case of Larkin Johnson, and others, against
Jonas Eaker, Judge of the District County Court of Stoddard county, on mandamus, which papers are in words and figures following, to-wit:
To Jonas Eaker, Jut4ge of the District County Court within  and for the county of
Stoddard:
You are hereby notified that an application will be made to HIon. Albert Jackson, Judge of the Circuit Courts for the Fifteenth Judicial Circuit, at the Clerk's
office, in the county of Stoddard, on Monday, the 22d day of March next, at 10
o'clock in the forenoon, for a writ of mandamus, touching the proceedings in said
County Court relating to the viewing and marking out the road leading firom
the town of Bloomfield, in said county, to John Kitchen's mill, on Castor river.
HIRAM WASSON, Attorneyfor the Petitioners.
To the Hoe. Albert Jackson, Jtedge of the Circuit Courts for the Fifteenth Judicial
Circuit, in the State of Missouri:
Your petitioners respectfully represent, that at the December term of the District County Court for the county of Stoddard, in the State of Missouri, a petition, signed by William L. Kelley, et al., was presented to said court, asking for
a road to be located, leading from the town of Bloomfield, in said county, to John
Kitchen's mill on Castor river, in Duck Creek township in said county; that
after due proceeding had upon said petition, John Kitchen, Robert Hill, and
William Culbertson were appointed by said County Court, Commissioners, to
view and mark out the line of said contemplated road; that said Commissioners viewed said route, marked out the line of said contemplated road, and
made report of their doings at the March term thereof, 1858.  Your petitioner
further represents, that at said March term of said court, and before final hearing had on said report, your petitioners presented to said court a remonstrance
against the report of said Commissioners, signed by ten householders, residents
within the township through which said contemplated road was to pass and had
been marked out by said Commissioners, praying said court to reject said report
of-said Commissioners, and to dismiss all proceedings under said petition; and
further asking said court, that if said court did not so reject said report and dismiss said proceedings, to appoint other Commissioners to view  and mark out
said road, in conformity with the law, and locate the same; which petition, report, and remonstrance are now on file in the office of the Clerk of said court, and
are made a part of this petition. Your petitioners further represent, that said
County Court refused either to reject the report of said Commissioners, or dismiss
the proceedings under said petition, or to appoint other Commissioners to view
and mark out said road and locate the same, as the law required, and as your
petitioners prayed; but on the contrary, did pass an order for the opening of
said road, as located by said Commissioners. Your petitioners, therefore, pray
your Honor to order a writ of mandamus to issue in conformity with law, directed to Jonas Eaker, Judge of the District County Court of Stoddard county,
aforesaid, returnable at the next Circuit Court, to be held within said county of
Stoddard, commanding said Eaker to show cause why a peremptory writ of mandamus should not issue to compel said Judge to appoint said Commissioners to
view and mark out said road, as prayed for in the remonstrance presentd to said
County Court by your petitioners, and for such further and other orders as law
and justice may require.
William D. Taylor,
Marquis Williams,
William G. Lincoln,
William Griffin.
By their attorney,
I, Hiram Wasson, on behalf and as agent of the plaintiffs, make oath and say,
that the foregoing petition, and the matters and things as therein stated, are
true, to the best of my knowledge and belief.
15
HIRAM WASSON.
225
Larkin Johnson,
J. R. McLane,
T. J. Walker,
Henry E. Sifford,
William H. liickman,
Daniel B. Miller,
HIRAM WASSON. 
HIGH COURPT OF IMPEACHMENT.
Subscribed and sworn to before me this 18th day of March, 1858.
REUBEN P. OWEN, Clerk,
by his Deputy, JOHN W. LEICH.
And afterwards, to wit, on the 17th day of May, 1858, the following writ or
instrument of writing was filed in the office of said Clerk, to wit:
State of Missouri,
County of Stoddard,  ss.
The State of Missouri to Jonas Eaker, Judge of the District County Court of Stod    dard county, Greeting:
Whereas, it has been represented to me, Albert Jackson, Judge of the Fifteenth
Judicial Circuit in the State of Missouri, that at the March term of the said District County Court a remonstrance, signed by ten householders of the township
through a certain contemplated road, leading from the town of Bloomfield to
Kitchen's mill, on Castor river, was presented to said District County Court,
protesting against the location of said contemplated road, in accordance with the
provisions of the law in such cases made and provided; and whereas, it is represented that the Judge of said District County Court, refusing to entertain or
take any steps, or make any order in relation said remonstrance, and left the
said remonstrants without remedy: These are, therefore, to command you to be
and appear before the Circuit Court of Stoddard county on the first day of the
next term thereof, to be held at the court house in the town of Bloomfield, in
said county, on the third Monday in May next, to show cause why the relief
asked in said remonstrance should not be granted.
Given under my hand, March the 22d, A. D. 1858.
ALBERT JACKSON, Judge.
On which said writ or instrument of writing the Sheriff of Stoddard county,
aforesaid, made the following return or endorsement, to wit:
Served the within writ and summons on the within named Jonas Eaker, on
the 25th day of March, 1858, by delivering him a true copy of the same.  Served
in Stoddard county, Missouri.
JAMES DOWDY, Sheriff,
by his Deputy, JOHN J. JAcKsoN.
And afterwards, to wit, on the 20th day of May, A. D. 1858, at the May term,
A. D. 1858, of the Circuit Court of said county of Stoddard, before the Hon. Albert Jackson, Judge of said court, the following proceedings were had in said
cause in said Circuit Court, to wit:
Larkin J. Johnson, et al.,
versus
Jonas Eaker, Judge of the District County Court.
Ordered by the court that an attachment issue in this cause against Jonas
Eaker, returnable immediately.
Which said writ of attachment is in words and figures following, to wit:
State of Missouri,   88.
County of Stoddard,  ss.
The State of Missouri to the Sheriff of Stoddard county, Greeting: _
We command you to take the body of Jonas Eaker, if he be found in your
county, and him safely keep, so that you have his body before our Honorable
Circuit Court, now in session, at the court house in the town ef Bloomfield, in
and for the county aforesaid, then and there to answer for a contempt; and also
to show cause why he does not make answer to a writ of mandamus, issued from
this court, in favor of Larkin J. Johnson and others, against Jonas Eaker, Judge
of the District County Court of Stoddard county; and that you certify to our said
court how you execute this writ; and have you then and there this writ.
.-     Witness, Reuben P. Owen, Clerk of said Circuit Court, with the seal
L.S.  thereof hereunto affixed, at office in Bloomfield, this 20th day of May, A.
.__ ~ D. 185.8.
REUBEN P. OWEN, Clerk.
226
I Mandainus.
- i 
HIGH COURT OF IMPEACHMENT.
On which writ of attachment the Sheriff of said county of Stoddard made the
following return, to wit:
Served the within attachment by taking or arresting the body of Jonas Eaker,
on the 20th day of May, 1858. Served in Stoddard county, Missouri.
JAMES DOWDY, Sheriff,
by his Deputy, JOHN J. JACKSON.
And afterwards, to wit, on the 21st day of May, A. D. 1858, was filed with the
Clerk of said court, during the sitting of said Circuit Court, the following instrument of writing, to wit:
State of Missouri,.
County of Stoddard, a
The State of Missouri to Jonas eaker, Judge of the District County Court of Stod —
dard county, Greeting:
Whereas, it has been represented to me, Albert Jackson, Judge of the Fifteenth
Judicial Circuit in the State of Missouri, that at the March term of said District
County Court a remonstrance, signed by ten householders of the township
through a certain contemplated road, leading from the town of Bloomfield to
Kitchen's mill, on Castor river location, presented to said District County Court,.
protesting against the location of said contemplated road, in accordance with
the provisions of the law in such cases made and provided; and whereas, it is
represented that the Judge of said District County Court refused to entertain, or
take any steps, or make any order in relation said remonstrance, and left the
said remonstrants without remedy: These are, therefore, to command you to be
and appear before the Circuit Court of Stoddard county, on the first day of the
next term thereof, to be held at the court house in the town of Bloomnfield, in
said county, on the third Monday in May next, to show cause why the relief
asked in said remonstrance should not be granted.
Given under my hand, March the 22d, A. D. 1858.
ALBERT JACKSON, Judge.
On which instrument of writing, filed as aforesaid, is the following endorsement, to wit:
Now comes the within named Jonas Eaker, and for answer to the within copy
of writ of mandamus says, that the within writ was served by the Sheriff by a}
copy of the original upon him, and declines to make further answer.
May 21st, 1858.                                       JONAS  EAKER,
Judye of the District County Court, Mo.
I, Reuben P. Owen, Clerk of the Circuit Court in and for the county of Stoddard, in the State of Missouri, do certify the foregoing to be a true and perfect
transcript of the record and proceedings in the case of Larkin J. Johnson, et al.,
against Jonas Eaker, Judge of the District County Court of Stoddard county, on
petition for a writ of mandamus, as the same appears now remaining on file and
of record in my office.
In testimony whereof, I have hereunto signed my name and affixed the
L.s.  seal of said Circuit Court, at office in Bloomfield, county and State afore    said, this 22d day of January, A. D. 1859. 
REUBEN P. OWEN, Clerk.
THlE STATE OF MISSOURI VS. JOHN R. MAIN.
Be it remembered, that on the 7th day of January, A. D. 1859, was filed in the
office of the Clerk of the Circuit Court of Stoddard county, in the State of Missouri, the following papers in the case of the State of Missouri versus John R.
Main, which papers are in words and figures following, to wit:
To the!fontorable Albert Jackson, Judge of the F;fteenth Judicial Circuit in the
State of Missouri:
John R. Main, the undersigned petitioner, humbly shows, that he is restrained
of his libertyby one John J. Jackson, at the town of Bloomfield, in the Qounty
227 
HIGIH COURT OF IMPEACHMENT.
of Stoddard, in the State of Missouri.  That on or about the 5th day of January, 1859, he was arrested on a warrant or process issued by one James Cravey,
Justice of the Peace in the county of Stoddard aforesaid, charged with grand
larceny, and taken before the said Justice, who made and issued the warrant
or process, a copy of which is hereto annexed; and by virtue of which, your
petitioner is restrained of his liberty as aforesaid.  That the property charged
as having been stolen by your petitioner, your petitioner held in possession by
reason of a contract made with the owner thereof. That said restraint is illegal in
that the said magistrate who made the said warrant, by virtue of which your petitioner is restrained of his liberty, did not at any time before committing your letitioner as aforesaid, take the examination of your petitioner, in relation to the offense
charged as provided by law; but when your petitioner asked leave to make a
statement in relation thereto, said magistrate refused to hear the same, and told
your petitioner that what your petitioner could say would make no difference.
That the said warrant of commitment is insufficient-L and defective, and that said
magistrate has not certified the examination of your petitioner as by law commanded, and there is no testimony to warrant such restraint. Therefore your
petitioner humbly prays that your honor will inquire respecting said restraint,
and your petitioner as in duty bound will ever pray, &c.
JOIIN R. MAIN.
John R. Main, petitioner above named, makes oath that the above petition
and the matters therein are true to the best of his knowledge and belief.
JOHN R. MAIN.
Subscribed and sworn to before the undersigned, Clerk of the Circuit Court of
Stoddard county, Missouri, this 7th day of January, 1859.
REUBEN P. OWEN, Clerk.
By VAN W. HALF, Deputy  Clerk.
State of Missouri,?
County of Stoddard, Iss
The State of Iissouri to the Constable of R;chland Townlship and the kee)er of
the Jail of said county of Stoddard, Greeting:
These are to command you, the said Constable, forthwith to convey and deliver into the custody of the keeper of the jail of the county of Stoddard aforesaid, the body of John R. Main, taken and brought before me, a Justice of the
Peace within and for the county aforesaid, and charged before me, upon the oath
of Robert Whitehead of Stoddard county, with grand larceny; and you the said
keeper of the said jail, are hereby required to receive the said John R. Main
into your custody into the said jail, and him there safely keep until he shall
thence be discharged by due course of law.
Given under my hand this 5th day of January, A. D. 1859.
JAMES CRAVEY, Justice of the Peace.
State of Missouri,.    By the Habeas Corpus Act.
County of Stoddard,  ss  "By the Habeas Corpus Act."
The State of Missouri to John J. Jackson, Deputy Sheriff of Stoddard county
Greeting:
You are hereby nommanded that the body of John R. Main, under your custody detained as it is said, under safe and secure conduct, together with the day
and cause of his being imprisoned and detained, by whatsoever name the said
John R. Main may be known, you have before me, Albert Jackson, Judge of the
Fifteenth Judicial Circuit of the State of Missouri, at the court house in the
town of Bloomfield, in said county, on the     day of January, 1859, to do and
receive what shall then and there be considered concerning the said John R.
Main, so imprisoned and detained as aforesaid; and hereof fail not at your
peril.
Witness my hand this 7th day of January, 1859.
ALBERT JACKSON, Judge.
I do hereby certify and return that the above named John R. Main is in
my custody, by virtue of a warrant made and issued by James Cravey. Justice
of the Peace in the county of Stoddard, a copy of which is hereto annexed and
228 
HIGH COURT OF DMPEACHMENT.
filed.  That I have not in my possession, and never had, any certified examination of said John R. Main, in relation to the offense stated in said warrant, and
no testimony in relation thereto.                  JAMES DOWDY,  Sheriff,
by his Deputy, JOHN J. JACKSON.
The State of Missouri )
versus         Charged with Grand Larceny.
John R. Main. 
The defendant being brought before me in obedience to the within writ, and
there being no charge brought against him, nor any evidence produced against
him, and there being no evidence that he had been legally arrested and tried
before a committing magistrate, or before any one having authority to commit
him to the custody of the Jailor of Stoddard county, and the paper herewith presented as a mittimus not being sufficient in form and substance to authorize the
Jailor of Stoddard county to hold him, the said John R. Main, in custody, it is
ordered that he be forthwith discharged.
January 7th, 1859.                                   ALBERT JACKSON.
State of Missouri,   t
County of Stoddard,  ss.
I, Reuben P. Owen, Clerk of the Circuit Court in and for the county of Stoddard, in the State of Missouri, do certify the foregoing to be a true copy of the
petition and affidavit for a writ of habeas corpus, writ of commitment, writ of
habeas corpus, and the Sheriffs return thereon, and also the order of the Judge
of the Circuit Court discharging the defendant in the case of the State of Missouri against John R. Main, as the same appears now on file in my office.
In testimony whereof I have hereunto signed my name and affixed
.S the. 1eal59.
{ L.S.  the seal of said court, at office in Bloomfield, this 8th day of February,
REUBEN P. OWEN, Clerk.
MATTHEW H. MIOORE VS. JAMES WALKER.
Record of the proceedings, orders, and judgments of the Circuit Court for the
county of Stoddard, in the Fifteenth Judicial Circuit of the State of Mis    souri, begun and held at the court house, in the town of Bloomfield, in said
county, on Monday the fifteenth day of November, in the year of our Lord
eighteen hundred and fifty-eight, before the Hion. Albert Jackson, Judge of
the Circuit Courts for the circuit aforesaid.
Be it remembered, that on the 15th day of October, A. D. 1858, was filed in
the office of the Clerk of the Circuit Court of said county of Stoddard, a petition
in writing, in the case of Matthew H. Moore against James Walker, which said
petition is in words and figures following, to wit:
Matthew Ht. Moor eA
M   vatthew Hl. Moore    Circuit Court of Stoddard county,
James Walker.    j  November term, A. D. 1858.
James Walker.
Plaintiff states that on the first day of December, A. D. 1857, he was entitled to
the possession of the following described premises, situate in the county of Stoddard, in the State of Missouri, to wit: A tract of land of three and 129-160 acres,
purchased by said plaintiff of and from Isaac Hobbs, of said county, beginning
at the south-west corner of the town of Bloomfield, and running  northl, with
the west boundary of the town of Bloomnfield, twenty-ninle poles; thence west
twenty-one poles; thence south twenty-nine poles; and thence east twenty-one
poles, to the place of beginning; which said tract was by said plaintiff laid out
into blocks and lots, and a plat thereof filed in the Recorder's office of said county,
on the 17th day of May, A. D). 1858, as an addition to said town of Bloomifield;
and being so entitled to the possession thereof, that the defendant, afterwards,
on the first day of April, A. D. 1858, entered into that part of said premises
known and described as follows, to wit: Beginning at a point twenty-seven feet
south of the north-east corner of said tract, and running thence west parallel
229 
HIGH COURT OF IMPEACHMENT.
with the northern boundary line of said tract, to the western boundary line of
said tract; thence south, along said line last mentioned, sixty-three feet; thence
east to the eastern boundary line of said tract; and thence north sixty-three
feet, to the place of beginning; and being sixty-three feet in depth of the southern part of lots numbers one, two, three, four, and five, of block A, as said premises are laid down and described on said plat, filed in said Recorder's office, as
aforesaid, and fronting on the north side of Shawanee street, of said addition;
and unlawfully withholds from the plaintiff the possession thereof, to his damage
in the sumni of two hundred dollars. He further avers that the monthly value
of the rents and profits of said premises is fifteen dollars.  Therefore the plaintiff demands judgment for the recovery of said premises, and two hundred dollars damages for the unlawfully withholding of said premises from said plaintiff,
and fifteen dollars for montly rents and profits, from the day last aforesaid
until the possession of said premises be delivered to the plaintiff, and for other
proper relief.                                        M. H. MOORE, Plaintiff.
State of Missouri, 
Bollinger county, 
Matthew H. Moore, the plaintiff named in the foregoing petition, makes oath
and says that the foregoing petition, and the matters and things therein as
stated, he believes to be true.                                   M. H. MOORE.
Sworn to and subscribed before me this 15th day of September, 1858.
J. C. NOELL,
Clerk Circuit  Court, Bollinger county, -[fo.
Annexed to said petition, the Clerk of said Circuit Court of Stoddard county
issued the following summons, to wit:
State of Missouri, )
County of Stoddard, 9ss
The State of Missouri to the Sheriff of Stoddard county, Greeting:
We comimand you to summons James Walker to be and appear at'the Circuit
Court of said county of Stoddard, on the first day of the term thereof, to be begun
and held at the court house in the town of Bloomfield, in said county and State, on
the third Monday of November next, to answer the foregoing petition of Matthew H. Moore, and that you testify to our said court how you execute this writ;
and have you then there this writ.
Witness Reuben P. Owen, Clerk of said Circuit Court of said county of Stoddard, with the seal thereof hereunto affixed, at office in Bloomfield, this 15th
day of October, A. D. 1858.                     REUBEN  P. OWEN,  Clerk,
by his Deputy, VAN W. HALE.
On which said petition and summons, the Sheriff of said county of Stoddard
made the following return:
Served the within petition and summons on the within named James Walker
by delivering him a copy of the same, on the 18th day of October, 1858.  Served
in Stoddard county, Missouri.                      JAMES  DOWDY,  Sheriff,
by his Deputy, JOHN J. JACKSON.
And afterwards, to wit, on the 22d day of November, A. D. 1858, at the November term, A. D. 1858, of said Circuit Court, before the Hon. Albert Jackson,
Judge, the following proceedings were had in said cause, in said Wurt, to wit:
Matthew H. Moore )
versus         Civil action.
James Walker. 
And now comes the defendant, by his attorney, and files his answer to the
plaintiff's petition herein.
Which said answer, filed by said defendant, as aforesaid, is in words and figures following, to wit:
Matthew HI. Moore} Civil action, in the Circuit Court of Stoddard county,
against Wle.Missouri, November term, A. D. 1858.
James Walker. 
Defendant, for answer to plaintiff's petition, says, he denies that he (plaintiff)
was, on the first day of December, 1857, entitled to the possession of three and
230 
HIGH COURT OF IMPEACHMENT.
129-160 acres of land, beginning at the south-west corner of the town of Bloomfield, and running north, with the west boundary of said town of Bloomfield,
twenty-nine poles; thence west twenty-one poles; thence south twenty-nine
poles; thence east twenty-one poles, to the place of beginning; as is set forth
in plaintiff's petition. Defendant further answers and says, that he has not sufficient knowledge to form a belief as to whether the plaintiff laid out into blocks
and lots three 129-160 acres, and filed plat thereof in the Recorder's office of the
county of Stoddard, or not, and therefore requires proof. Defendant denies that
he, on the first day of April, A. D. 1858, or any other day, entered into any lands
or possessions belonging to plaintiff, as is alleged in plaintiffs petition. Defendant denies that he unlawfully withholds the possession of said lands or other
possessions, the property of plaintiff, as is alleged in his petition. Defendant
denies that he has damaged plaintiff to the amount of two hundred dollars, or
any other amount, by unlawfully withholding the possession of any premises,
as is alleged in plaintiff's petition.  Defendant denies that the monthly value of
the rents and profits of any premises belonging to said plaintiff is worth fifteen
dollars, as is alleged in plaintiff's petition.
Defendant states that he is the owner of a certain tract or parcel of land
adjoining the west boundary of the town of Bloomfield, in the county of Stoddard, in the State of Missouri, as follows, to wit: Beginning twenty-one poles
north of the south-west corner of the town of Bloomfield, ill Stoddard county,
aforesaid; thence west forty poles; thence north thirteen poles; thence east
forty poles; thence south thirteen poles; situated and lying immediately north
of the northern fence of the premises occupied by Isaac Hobbs, which said
premises has been owned and occupied by defendant and those under whom lie
claims for more than twenty years, which defendant is ready to verify.
S. G. KITCHEN, for Defendant.
James Walker, defendant, makes oath and says that the matters and things as
stated in the foregoing answer, he believes to be true.
his
JAMES P WALKER.
mark.
Sworn to and subscribed before the undersigned, Clerk of the Circuit Court of
Stoddard county, Missouri, the 22d day of November, A. D. 1858.
REUBEN P. OWEN, Clerck.
And afterwards, to wit, on the said 22d day of November, A. D. 1858, at the
November term, A. D. 1858, of said Circuit Court, before the Hon. Albert Jackson, Judge, the following proceedings were had in said cause, in said Circuit
Court, to wit:
Matthew H. Moore)
versus        Civil action.
James Walker.
And now comes the parties, by their attorneys, and the plaintiff files his petition and affidavit, praying for a change of venue herein. It is therefore ordered
that a change of venue be awarded herein to the Circuit Court of Scott county,
and that the Clerk of this Court make out a full, true, and perfect transcript of
the record in this cause, and transmit the same duly certified to the Clerk if the
Circuit Court of said county of Scott, with all convenient speed. Which said
petition and affidavit for a change of venue in this cause, is in the words and
figures following, to wit:                                             _
Matthew H. Moore, Plaintiff, 
versus              Crcu        t  Court of Stoddard county,1858.
James Walker, Defendant.            November ter, 1858.
To the Vonorable Circuit Court of Stoddard county:
The undersigned petitioner, plaintiff in the above entitled action, respectfully
prays this Honorable Court to award a change of venue herein, because the
Judge of said court is prejudiced against him.
M. H. MOORE, Petitioner.
Matthew H. Moore, the plaintiff and petitioner above named, makes [oath] and
says that the above petition is true, and that he has just cause to believe that
he cannot have a fair trial in this action, on account of the prejudice of said
Judge.                                                         M. H. MOORE.
231 
HIGH COURT OF IMPEACHMENT.
f/
Sworn to and subscribed before me this 18th day of November, 1858.
REUBEN P. OWEN, Clerk.
State of Missouri, )
County of Stoddard,  s.
I, Reuben P. Owen, Clerk of the Circuit Court in and for the county of Stoddard, in the State of Missouri, do certify that the foregoing is a true and perfect
transcript of the record and proceedings in said cause of Matthew H. Moore
against James Walker, as the same appears now remaining in my office.
I *.   In testimony whereof, I have hereunto signed my  name and affixed
L.S. I the seal of said Circuit Court, at office in Bloomfield, county and State
aforesaid, this 21st day of January, A. D. 1859.
REUBEN P. OWEN,  Clerk.
GUSTAVUS BERRY VS. JOHN GRIFFIE.
Record of the pleas, proceedings, orders, and judgments of the Circuit Court for
the county of Stoddard, in the Fifteenth Judicial Circuit of the State of Mis    souri, begun and held at the court house, in the town of Bloomfield, in Stod    dard county aforesaid, on Monday, the 17th day of May, A. D. 1858, (eighteen
hundred and fifty-eight,) before the Honorable Albert Jackson, Judge of the
Circuit Courts for the circuit aforesaid.
Be it remembered that on the 1st day of January, A. D. 1858, was filed in the
office of the Clerk of the Circuit Court, a petition, bond, and affidavit in writing,
in the case of Gustavus Berry against John Griffie, which said petition, bond, and
affidavit are in words and figures following, to wit:
Gustavus Berry, Plaintiff, Civil action by attachment in the Stoddard Circuit
against
John Griffie, Defendant.)     Court, to the May term thereof, A. D. 1858.
John Griffe, Defendant.
Plaintiff states that the above named defendant is indebted to plaintiff in the
sum of two hundred and eleven dollars, on account of moneys advanced and paid
to said defendant upon contract to sell to plaintiff one certain piece or parcel of
land, and to build a house thereon for plaintiff, said land situated in the county of
Stoddard and State of Missouri, which the said Griffie has failed to do and perform, to the damage of said plaintiff in the sum of two hundred and eleven dollars,
for which he asks judgment. The evidence of the indebtedness is herewith filed.
BEDFORD, for Plaintiff.
Gustavus Berry makes oath and states that the above petition and the matters
and things therein as stated he believes to be true.
GUSTAVUS BERRY.
Sworn to and subscribed before the undersigned, Clerk of the Circuit Court of
Stoddard, Missouri, this, the 1st day of January, A. D. 1858.
REUBEN  P. OWEN,  Clerk,
by his Deputy, JOHN W. LEACH.
Gustavus Berry)
versus      Attachment-civil action.
John Griffie.                                                    "
We, Gustavus Berry, as principal, and Moses Neill, Philip P. Neill as his securities, acknowledge ourselves to be indebted to the State of Missouri in the sum of
five hundred dollars, for the payment whereof we bind ourselves, our heirs, and
executors, and administrators, firmly by these presents, sealed with our seals, this
December 31st, A. D. 1857.
The conditions of the above obligation is that whereas Gustavus Berry, as plaintiff, is about to commence a suit by attachment in the Circuit Court of Stoddard
county, Missouri, against John Griffie, defendant, returnable to the next term
thereof, wherein the sum sworn to is two hundred and eleven dollars: Now, if the
said plaintiff shall prosecute his action without delay and with effect, refunding all
sums of money that may be adjudged to the defendant, or found to have been recovered by the plaintiff and not justly due him, and pay all damages that may
occur to any defendant, or garnishee by reason of the attachment, or any process
232 
HIGH COURT OF IMPEACHMENT.
or proceeding in the suit, or by reason of any judgment, or process thereon, then
this obligation to be void, otherwise to remain in full force. Witness our hands
and seals this the 1st day of January, A. D. 1858.
GUSTAVUS BERRY, [SEAL.]
his
MOSES P  NEILL,          [SEAL.]
mark.
P. P. NEILL,             [SEAL.]
Approved the 1st day of January, A. D. 185
REUBEN P. OWEN, Clerk,
by his Deputy, JOHN W. LEACH.
Gustavus Berry Plaintiff, ) Attachment in civil action, in the Circuit Court of
against
John Griffie, Defendant.  Stoddard county, Missouri, to May term, A. D. 1858.
This affiant, Gustavus Berry, states, that in the above entitled cause he has a
just demand against the defendant therein now due, and that the amount which he
(the plaintiff) ought to: recover after allowing all just credits and set-offs is two
hundred and eleven dollars; and that plaintiff has good reason to believe, and does
believe, that the defendant is about to remove his property or effects out of this
State, with the intent to defraud, hinder, or delay his creditors.
GUSTAVUS BERRY.
Sworn to and subscribed before me this 31st day of December, A. D. 1857.
REUBEN  P. OWEN,  Clerk,
by his Deputy, JOHN W. LEACH.
Annexed to said petition and affidavit the Clerk of said court issued the following writ, to wit:
State of Missouri,
County of Stoddard,  8.
The State of Missouri to the Sheriff of Stoddard county, Greeting:
We command you to attach John Griffie by all and singular his lands and tenements, goods, chattels, rights, moneys, credits, evidences of debt and effects, or so
much thereof as shall be sufficient to satisfy two hundred and eleven dollars, with
interest and costs of suit, in whose possession soever the same may be found in
your county, and that you summons the said John Griffie that he be and appear
before our Circuit Court of the county of Stoddard, on the first day of the next
term thereof, to be held at the court house in Bloomfield, in the said county of
Stoddard, on the 3rd Monday of May next, then and there to answer the petition
of Gustavus Berry, wherein he asks judgment for two hundred and eleven dollars.
And that you summons all persons that you shall find in the possession of goods,
moneys, or effects of the defendant not actually seized by you, and all debtors of
the defendant, and such other persons as the plaintiff or his attorney shall direct
as garnishees, to be and appear before our said court, at the time and place aforesaid, then and there to answer such allegations and interrogatories as may be exhibited against them; and have you then and there this writ.
.  * ~   In testimony whereof, the undersigned Clerk of the Circuit Court has
L.S.  hereunto signed his name and affixed the seal of said court at office, this
I L.S  1st day of January, 1857.              REUBEN P. OWEN,  Cirk,
by his Deputy, JoHUN W. LEACH.
On which said writ and petition the Sheriff of said county of Stoddard made
the following return, to wit:
Executed the within writ of attachment upon the within named defendant, John
Griffie, by reading the same in his presence and hearing, January 2nd, A. D. ]858,
in Stoddard county, Missouri, and by levying upon and taking into actual [possession] one sorrel horse, about four years ot age; also bridle and saddle, martingales, and one pile of rails, supposed to be one thousand, on the 3rd of January,
A. D. 1858. Levied upon the 6th of same month, at same county and State, one
ox wagon, and one yoke of oxen, colored, one red, with a white face, the other
a brown, with a white face; all of which was levied upon as above stated, as the
property of the above named John Griffie.                  JAMES  DOWDY,
Sheriff of Stoddard county, 2o.
233 
HIGH COURT OF IMPEACHIBIENT.
The evidence of indebtedness, filed with said plaintiff's petition, is in words and
figures following, to wit:
Know men by these presents, that I, John Griffie, have sould all my wright and
title, bouth in law equity, to Gu8tavtzts Berry, of a pre-emption made 11th of November, A. D. 1856, one 40, lying section 34; one 80 in section 33. Received payment
in full, this the 26th day of November, 1856.
JOHN GRIFFIE.
Know men by these presents, that I, John Griffie, agree to build Mr. Gustavtus
Berry a hobs as follows: 18 by 20, I hugh the logs, put it up, and under a three
foot board riuf, and put the chimney to it, 43 hundred rails to be made and putup,
for one hundred dollars payed in hand; thear is a 11 dollars more payed, which is
to be satisfied by labour done on the house, the labour to be completed by the first
of May.
November 26th, 1856.                                       JOHN  GRIFFIE.
And afterwards, to wit, on the 17th of May, A. D. 1858, at the May term, A.
D. 1858, of the Circuit Court of said county of Stoddard, before the Hon. Albert
Jackson, Judge, the following proceedings were had in said cause in said Circuit
Court, to wit:
Gustavus Berry<)
versus  Civil action-attachment.
John Griffie. )
And now comes the defendant and moves the court to rule the plaintiff to give
security for the costs of this suit.
Which said motion is in words and figures following, to wit:
Gustavus Berry) Civil action by attachment in the  Stoddard Circuit Court, to
versus
J verohn Gfe     the November term, A. D. 1858.
John Griffie.
John Griffie, defendant in the above cause, moves the court to rule the plaintiff to
give new and better security, on the grounds that the security in his bond is wholly
insufficient, being insolvent or likely to become insolvent.
C. DAVIS & WASSON,
Attorneys for Defendant.
And afterwards, to wit, on the 20th day of May, 1858, at the May term, A. D.
1858, of the Circuit Court of said county of Stoddard, before the Hon. Albert
Jackson, Judge, the following proceedings were had in said cause in said Circuit
Court, to wit:
Gustavus Berry)
versus  Civil action-attachment.
John Griffie. )
The defendant by his attorney comes and files a plea in the nature of a plea in
abatement.
Which said plea is in the words and figures following, to wit:
Gustavus Berry  In the Circuit Court of Stoddard county, State of Missouri,
versus
John  Griffie. f     May term, A. D. 1858.                      "
The defendant, John Griffie, denies the matters as alleged in plaintiff's affidavit,
and says that he was not at any time before the suing out of the writ of attachment, and filing the affidavit in the same, about to remove his property or effects
out of the State of Missouri with the intent to defraud, or hinder, or delay his
creditors, as set forth in the said affidavit of plaintiff.
JOHN GRIFFIE.
Sworn to and subscribed in open court this 17th day of May, A. D. 1858.
REUBEN P. OWEN, Clerk.
And afterwards, to wit, on the said 20th day of May, A. D. 1858, at the said
May term, A. D. 1858, before the Hon. Albert Jackson, Judge, the following proceedings were had in said cause in said Circuit Court, to wit:
234 
HIGH COURT OF IMPEACHMENT.
Gustavus Berry)
versus       Civil action-attachment.
John Griffie. 
The parties by their attorneys appear, whereupon comes a jury, to wit: 1 William L. Boyd, 2 Thomas Kenney, 3 Francis M. Smith, 4 Thomas Lingo, 5 Cader
Dement, 6 Jesse B. Griffin, 7 Daniel Bridges, 8 James Simmons, 9 William P.
Wright, 10 Joseph Mooney, 11 James K. Cook, 12 Thomas J. Walker-twelve
good and lawful men, who being elected, tried and sworn to well and truly try the
issue joined in the plea in abatement in this cause, and having heard all the testimony offered and argument of counsel, retire to consult of their verdict. When
they return here into court, and say, we the jury find that the defendant, John
Griffie, was about to remove his property or effects out of this State, with the intent to defraud, hinder. or delay his creditors.
And the defendant files his answer to the plaintiff's petition herein, and this
cause is continued until the next term of this court.
Which said answer filed by said defendant as aforesaid, is in words and figures
following, to wit:
Gustavus Berry  In the Circuit Court of Stoddard county, State of Missouri,
vet~sit
John Grffie. J                   May term, A. D. 1858.
John Griffie.
Defendant denies that plaintiff ever paid him the sum of two hundred and eleven
dollars. Defendant says that he sold to plaintiff his pre-emption right, or whatever right, title, both in law or equity, he had to forty acres in section thirty-four,
(34;) also eighty acres in section thirty-three, for the sum of two hundred and eleven
dollars in goods, and believed by the false and fraudulent representations of plaintiff that he had received the same, but that upon examining said goods he ascertained that they did not amount to the said sum at the prices agreed upon between
plaintiff and defendant, but to the amount of one hundred and eighty-six dollars.
Defendant further answers that he built said house as he contracted on said land
in the county of Stoddard, and the same was ready for delivery. Defendant
further says that he has not damaged plaintiff in the sum of two hundred and
eleven dollars, or in any other sum, but that he has performed in full his said contract made with said plaintiff.
WASSON & DAVIS, for Defendant.
John Griffie, defendant, makes oath and says that the above answer and the matters as therein stated he believes to be true.
JOHN GRIFFIE.
Sworn to and subscribed in open court, May 20th, 1858.
REUBEN P. OWEN, Cler7k.
And afterwards, to wit, on the 22nd day of May, A. D. 1858, at the May term,
A. D. 1858, of the said Circuit Court, before the Hon. Albert Jackson, Judge, the
following proceedings were had in said cause, in said Circuit Court, to wit:
Gustavus Berry)
verseus     Civil action-attachment.
John Griffie. 
Ordered by the court that James Dowdy, Sheriff of this county, be allowed the
sum of twenty-one dollars, to be taxed as other costs in this cause, for expense of
keeping the property attached in this cause.
And afterwards, to wit, on the 18th day of November, A. D. 1858, at the November term, A. D. 1858, of the Circuit Court of said county of Stoddard, before the
Hon. Albert Jackson, Judge, the following proceedings were had in said cause, in
said Circuit Court, to wit:
Gustavus Berry)
versus     Civil action-attachment.
John Griffie. 
The parties by their Attorneys appear, whereupon comes a jury, to wit: 1 Henry
Miller, 2 Amstead Dowdy, 3 Charles G. Hawkins, 4 Andrew J. Dewblin, 5 James
235 
HIGH COURT OF IMPEACHMENT.
Cravens, 6 John D. Warren, 7 William C. Randal, 8 Cader Dement, 9 Lemuel H.
Jackson, 10 Carter T. Welburn, 11 Jacob Wilfong, 12 Jesse Purtle-twelve good
and lawful men, who being duly elected, tried, and sworn, to well and truly try
this cause.
And afterwards, to wit, on the 19th day of November, 1858, at the November
term, A. D. 1858, of the Circuit Court of said county of Stoddard, before the Hon.
Albert Jackson, Judge, the following proceedings were had in said cause, in said
Circuit Court, to wit:
Gustavus Berry)
versus      Civil action-attachment.
John Griffie. 
The parties by their attorneys come, and the jurors in this cause appear all here in
court, and having heard all the testimony offered and argument of counsel, retire
to consult of their verdict. When they return here into court and say, "We, the
jury, find that the defendant is indebted to the plaintiff in the sum of two hundred
and twenty-one dollars, and interest from the date of contract."
And afterwards, to wit, on the 19th day of November, A. D. 1858, at the November term, A. D. 1858, of the said Circuit Court, before the Hon. Albert Jackson,
Judge, the following proceedings were had in said cause, in said court, to wit:
Gustavus Berry)
versus      Civil action-attachment.
John Griffie. i
The defendant by his attorney comes and moves the court to grant a new trial
herein on reasons filed.
Which motion, filed as aforesaid, is in the words and figures following, to wit:
Gustavus Berry ) Circuit Court, Stoddard county,
vrJohn Gffie.        November term, 1858.
John Griffie. 
Defendant moves for a new trial in this action; because, first, on the trial plaintiff totally failed to prove any cause of action alleged in the petition. Second,
the jury were misled by testimony to prove who was the owner of the land in
question at the time of trial. Third, the testimony introduced which tended to
prove who was the owner of the land in question at the time of trial should have
been excluded. Fourth, the jury were misled by the opinion of the court, that
defendant had no interest susceptible of conveyance in the land mentioned in the
petition. Fifth, plaintiff on the trial proved no damages. Sixth, on the trial
defendant proved performance of the contract alleged in petition. Seventh, the
verdict is greater than the testimony warrants.
WASSON,  Defendazt's8 Attoney.
And afterwards, to wit, on the 20th day of November, A. D. 1858, at the
November term, A. D. 1858, of the Circuit Court of said county, before the Hon.
Albert Jackson, Judge, the following proceedings were had in said cause, in said
court, to wit:
Gustavus Berry)
vers.'e9  Civil action-attachment.
John Griffie. J
The parties by their attorneys appear, and the court having sufficiently advised
of the motion to grant a new trial herein, doth consider that said motion be overruled. And the said defendant moves the court in arrest of judgment in this
cause on reasons filed; which motion is overruled by the court. To which opinion
and decision of the court in refusing to grant a new trial herein, and overruling
the motion in arrest of judgment, the defendant objects and excepts.
Which said motion in arrest of judgment, filed as aforesaid, is in words and
figures following, to wit:
236 
HIGH COURT OF IMPEACHMENT.
Gustavus Berryt Circuit Court of Stoddard county,
vets~us
Jh Gversus   j   November term, 1858.
John Griffie.
Defendant moves the court to arrest the judgment in this action for this: That,
first, the verdict is inconsistent with the plaintiff's demand of relief, in that it is
greater in amount than the relief demanded. Second, the jury gave damages for
an item in plaintiff's account, which the plaintiff was notallowed to prove, to wit:
the item of rails, for which plaintiff claimed one hundred iollars.
WASSON, Defendant's Attorney.
And afterwards, to wit, on the 22nd day of November, A. D. 1858, at the
November term, A.D. 1858, of the said Circuit Court, before the  Hon. Albert
Jackson, Judge, the following proceedings were had in said cause, to wit:
Gustavus Berry)
versus       Civil action-attachment.
John Griffie. 
The defendant by his attorney comes and files his affidavit, and prays an appeal
herein to the Supreme Court, which appeal is here granted.
Which said affidavit, filed as aforesaid, is in the words and figures following,
to wit:
Gustavus Berry ) Circuit Court, Stoddard county,
versus
JohneGriffie.  ) November term, 1858.
John Griffie. 
This affiant states that the application for an appeal by John Griffie, defendant in the above entitled action, is not made for vexation or delay, but because
this affiant believes that the appellant is injured by the judgment of the court
in said action.
JOHN GRIFFIE.
Subscribed and sworn to before me this 20th day of November, 1858.
REUBEN P. OWEN, Clerk.
And afterwards, to wit, on the 23rd day of November, A. D. 1858, at the November term, A. D. 1858, of the Circuit Court of said county of Stoddard, before the
Hon. Albert Jackson, Judge, the following proceedings were had in said cause, in
said court, to wit:
Gustavus Berry
versus      Civil action-attachment.
John Griffie.
And now at this time comes the parties with their respective attorneys, and on
motion of the plaintiff he has leave to remit all that sum of in the verdict of the
jury in this cause, which exceeds two hundred and eleven dollars, the amount
claimed by said plaintiff. It is therefore considered and adjudged by the court,
that said plaintiff recover against said defendant his debt aforesaid, in form aforesaid, to the sum of two hundred and eleven dollars, together with his costs and
charges by him laid out about his said suit in this cause expended, to which opinion and decision of the court in allowing said plaintiff to remit, and in rendering
judgment herein, the defendant objects and excepts. And on motion of to plaintiff,
it is ordered that the Sheriff of this county pay over to the plaintiff herein the
money arising from the sale of the property attached in this cause, or so much
thereof as will pay off and satisfy the judgment in this cause. And the said defendant files his bill of exceptions herein, which is allowed and signed, and made
part of the record in this cause.
Which said bill of exceptions is in the words and figures following, to wit:
Gustavus Berry
GusteursBerru  l Circuit Court, Stoddard county, November term, 1858.
John Griffie. J                 Bill of exceptions.
Be it remembered, that in the trial of this cause, a jury was empanneled and
sworn to try the issue, and (here insert the testimony,) and the jury (here insert
posted.)
237 
HIGH COURT OF IMPEACHMENT.
Defendant then and there moved for a new trial, for the following reasons:
First, on the trial plaintiff totally failed to prove any cause of action alleged in
the petition. Fourth, plaintiff in the trial proved no damages. Fifth, on the
trial defendant proved performance of the contract alleged in the petition. Sixth,
the verdict is greater than the testimony warrants. Which motion was overruled
by the court, and defendant then and there objected and excepted to the decision
of the court.
Defendant afterwards moved in arrest of judgment for the following reasons,
to wit: The verdict is inconsistent with the plaintiff's demand of relief, in that
it is greater in amount than the relief demanded. Which motion was overruled
by the court, and to which decision by the court defendant then and there objected
and excepted and prayed an appeal, which was granted.
On the seventh day of the term plaintiff filed the following motion: Now at
this time comes the plaintiff by his attorney herein and moves the court to permit
him to remit all of that sum in the verdict which exceeds two hundred and eleven
dollars, the amount claimed by said plaintiff in his petition, which motion is granted by the court, and to which decision defendant objects and excepts. The defendant tenders this bill of exceptions, and prays the same may be signed, sealed, and
made part of the record in this cause, which prayer is granted.
ALBERT JACKSON.
State of Missouri,.
County of Stoddard, J.
I, Reuben P. Owen, Clerk of the Circuit Court within and for the county of
Stoddard, in the State of Missouri, do certify that the foregoing is a full, true, and
perfect transcript of the record and proceedings in the foregoing cause of Gustavus
Berry versus John Griffie, as the same appears now remaining in my office.
~'     In testimony whereof, I have hereunto signed my name and affixed the
{L.S.} seal of said court, at office in Bloomfield, county and State aforesaid, this.
24th day of January, A. D. 1858.
REUBEN  P. OWEN,  Clerk.
THE STATE OF MISSOURI VS. DAYID G. HICKS.
Record of the pleas, proceedings, orders, and judgments of a special term of the
Circuit Court, begun and held at the court house in the town of Bloomfield,
in Stoddard county, in the Fifteenth Judicial Circuit of the State of Mis    souri, on Monday, the 9th day of August, A. D. eighteen hundred and fifty    eight, before the Hon. Albert Jackson, Judge of the Circuit Courts for the
circuit aforesaid, which said court was ordered to be held by the Judge
thereof, in conformity to law.
Be it remembered, that on the 14th day of August, A. D. 1858, at said special
term of said Circuit Court, held in August, A. D. 1858, before the Hon. Albert
Jackson, Judge of said court, among others, the following proceedings were had,
to wit:
The grand jury returns here into court the following bill of indictment, to wit:
The State of  issouri  Indictment for an assault with a deadly weapon,
Dvird G. c8     )with intent to kill. 
David G. Hicks.      )
A Truite Bill
Which said bill of indictment is in words and figures following, to wit:
The State of Missouri, 
Fifteenth Judicial Circuit,  ss.
In the Circuit Court for Stoddard county, August terin, in the year of our Lord
one thousand eight hundred and fifty-eight.
The grand jurors of the State of Missouri, empanneled, sworn, and charged
to inquire within and for the body of the county of Stoddard, upon their oath do
present: That David G. Hicks, late of the county of Stoddard, in the State of
Missouri, on the first day of July, in the year of our Lord one thousand eight
238 
HIGH COURT OF IMPEACHMENT.
hundred and fifty-eight, at the county of Stoddard aforesaid, with force and
arms, unlawfully, then and there with a certain pistol, which he, the said David
G. Hicks, held in his right hand, attempt to shoot one John Conran, with intent
him, the said John Conran, to kill, against the peace and dignity of the State of
Missouri.
D. G. HICKS, Circuit Attorney.
On the back of which said indictment is the following endorsements, to wit:
"(3.)  State of Missouri vs. David G. Hicks.  Attempting to shoot.  A True
Bill.  James L. Hale, foreman of the grand jury.  Witnesses-Joseph J. Miller,
John P. Conran, H. A. Shook. Filed August 14th, A. D. 1858. Reuben P.
Owen, Clerk."
And afterwards, to wit, on the 20th day of November, A. D. 1858, at the November term, 1858, of the Circuit Court aforesaid, before thi  Hon. Albert Jackson, Judge, the following proceedings were had in sai, cause in said court,
to wit:
The State of Missouri } Indictment for an assault with a deadly weapon,
versu~s~CkS.    f              with i,i ent to kill.
David G. Hicks.
The defendant, by his attorney, comes end moves the court to quash the indictment in this cause, on reasons filed, which motion to quash is sustained by
the court. It is therefore considered and adjudged by the court, that said defendant of the said indictment and the matters and things therein charged
against him be hence discharged, and go thereof without day.
State of Missouri, I
County of Stoddard, ss.
I, Reuben P. Owen, Clerk of the Circuit Court in and for the county of Stoddard, in the State of Missouri, do certify the foregoing to be a true and perfect
transcript of the record and proceedings in the case of the State of Missouri vs. David G. Hicks, as the same appears of record now remaining in
my office.
In testimony whereof I have hereunto signed my name and affixed
. ) the seal of said court. at office in Bloomfield, county and State aforesaid,
this 24th day of January, A. D. ] 859.
,_@_~~~~ ~REUBEN P. OWEN,  Clerk.
APPOINTMENTS OF DAVID G. HICKS.
Record of the proceedings, orders, and judgments of the Circuit Court for the
county of Stoddard, in the Fifteenth Judicial Circuit of the State of Mis    souri, begun and held at the court house in the town of Bloomfield, in said
county, on Monday, the fifteenth day of November, A. D. eighteen hundred
and fifty eight, before the Hon. Albert Jackson, Judge of the Circuit Courts
for the circuit aforesaid.
Be it remembered, that on the 15th day of November, A. D. 1858, at the said
November term, A. D. 1858, of the Circuit Court aforesaid, before the Hon.
Albert Jackson, Judge as aforesaid, among others, the following proceedings
were had in said court, to wit:
"Ordered by the court that David G. Hicks, Esq., be appointed Circuit Attorney for the time being."
I, Reuben P. Owen, Clerk of the Circuit Court in and for the county of Stoddard, in the State of Missouri, do certify that the foregoing is a true copy of the
order of said court, appointing David G. Hicks Circuit Attorney, as the same remains of record now in my office.
In testimony whereof I have hereunto signed my name and affixed
LS.  the seal of said Circuit Court, at office in Bloomfield, this 24th day of
I *_ *f January, A. D. 1859.
__R:EUB3EN  P. OWEN,  Clerk.
239 
HIGH COURT OF IMPEACHMENT.
Record of the proceedings, orders, and judgments of special term of the Circuit
Court, begun and held at the court heuse in the town of Bloomfield, in
Stoddard county, in the Fifteenth Judicial Circuit of the State of Missouri,
on Monday, the ninth day of August, A. D. eighteen hundred and fifty-eight,
before the Hon. Albert Jackson, Judge of the Circuit Courts for the circuit
aforesaid, which said court was ordered to be held by the Judge thereof, in
conformity to law.
Be it remembered, that on the 9th day of August, A. D. 1858, at a special term
of the said Circuit Court of said county of Stoddard, before the Hon. Albert
Jackson, Judge, among others, the following proceedings were had in said Circuit Court, to wit:
"Ordered by the court that David G. Hicks be, and he is hereby, appointed
Circuit Attorney, for the time being."
I, Reuben P. Owen, Clerk of the Circuit Court in and for Stoddard county,
State of Missouri, do certify the foregoing to be a true copy of the order of said
court, appointing David G. Hicks Circuit Attorney, as the same appears of record, now remaining in my office.
In testimony whereof I have hereunto signed my name and affixed
L.S. I the seal of said court, at office in Bloomfield, this 24th day of January,
_JA. D. 1859OEN, Clk.
' ~   ~    ~     ~    ~    ~ ~ ~REUBEN P. OWEN, Clerlc.
PETITION OF WM. M. ATTERBURY FOR WRIT OF HABEAS CORPUS.
To the Honorable Albert Jackson, Judge of the Fifteenth Judicial Circuit in the
State of Missouri:
The undersigned, your petitioner, respectfully makes known to your Honor,
that one William W. Atterbury is restrained of his liberty at this time by, he
believes, Henry Noble, Sheriff of Dunklin county, and ex officio Jailor of said
county; and he believes that said Atterbury is imprisoned in the jail of said
county; that said Atterbury was taken and delivered to said Jailor by one David
G. Hicks, on the pretense that he had a capias for him on the charge of embezzlement, which petitioner well knows said Hicks never had, though he believes
that said Atterbury is indicted in the Circuit Court of said county for embezzlement; that he prays your Honor to issue a writ of habeas corpus to bring said
Atterbury before your Honor, that he may give bail, which he is able and willing
to give in Bloomfield, as two good and solvent men will go his bail, but is unable
to do so in Dunklin county. Petitioner does not present a copy of the cause of
detention, from the fact that he has had no opportunity to apply for the same.
And, in duty bound, he will ever pray.
WILLIAM M. ATTERBURY.
[The 5th section of article 1st is not complied with sufficiently.]
William M. Atterbury, the above named petitioner, makes oath, and says that
the foregoing petition, and the matters therein, as stated, he believes to be true.
WILLIAM M. ATTERBURY.
Sworn to and subscribed before me, this first day of February, 1858.
REUBEN P. OWEN,
Clerk Circuit Court of Stoddard county, Missouri.
On motion of SENATOR VERNON, the Court adjourned.
*The memorandum made by Judge Jackson, and alluded to by Mr. Phelan in
his testimony.
240 
HIGH COURT O IMPEACHMENT.
EVENING SESSION.
WEDNESDAY, June 15, 1859.
The Court met pursuant to adjournment.
The managers and respondent attended.
The reading of the record evidence offered by the State was resumed.
STATE OF MISSOURI VS. SARAH BUCKNER.
Record of the pleas, proceedings, orders, and judgments of the Circuit Court,
for the county of Stoddard, in the Fifteenth Judicial Circuit of the State
of Missouri, begun and held at the court house in the town of Bloomfield,
county aforesaid, on Monday, the 21st day of May, in the year of our Lord
eighteen hundred and fifty-five, before the IHon. Albert Jackson, Judge of
the Circuit Courts for the circuit aforesaid.
Be it remembered, that on the 7th day of March, A. D. 1855, was filed in the
office of the Clerk of the Circuit Court of said county of Stoddard, a transcript
of the record and proceedings of the Circuit Court of Bollinger county, in the
case of the State of Missouri versus Sarah Buckner, which said transcript is in
words and figures following, to wit:
State of Misssouri, I
County of Bollinger, ss.
Be it remembered, that at the March term of the Circuit Court, for the year
A. D. eighteea hundred and fifty-five, commnenced on the first day of March, in
the said year, and held at the court house in the town of Dallas, in the county
of Bollinger, and State of Missouri, amnong other proceedings the following were
had, viz:
Circuit Court of the county of Bollinger, in the State of Missouri, March term,
A. D. 1855.
Thursday, March 1st, A. D. 1855, first day of the term. Court met pursuant
to adjournment. Present H. Hough, Judge.
William C. Grimsley, Sheriff of Bollinger county, Missouri, returns the following named persons summoned to serve at this term of this court as grand
jurors of said county, viz: Samuel Ramsey, 1; Samuel  Whylark, 2; Andrew
Seabaugh, 3; George W. Smith, 4; Daniel Seabaugh, 5; Garrett Tidwell, 6;
Washington Slinkard, 7; William Stevens, 8; James Check, 9; Caleb Eaker,
10; Drury J. Williams, 11; Alfred Slaugh, 12; Richard H. Winters, 13; William Youngblood, 14; Shadrick Warren, 15; James Step, 16; George Wiggins,
17; Samuel Merida, 18.  When Samuel Ramsey was appointed foreman, and
the jury having been duly sworn and charged, retire to consult of their duties.
And afterwards, to wit, on the third day of March, A. D. 1855, being the third
day of the term, among others, the fellowing proceedings were had:
The grand jury returns into court the following bill of indictment:
The State of Missouri I
Sarah BvUCkersus and' Indictment for the murder of Whitson Buckner.
SuSarah Buckner and
Susan P. Seabaugh. J
And the grand jury having no further business before them, are discharged.
And whereas, afterwards, to wit, on the said 3d day of March, A. D. 1855, it
being the third day of the term, among others, the following proceedings were
had on the aforesaid indictment against Sarah Buckner and Susan P. Seabaugh,
for the murder of Whitson Buckner; and which said indictment is in the foll wing words and figures, to wit:
16
241 
HIGH COURT OF IMPEACHMENT.
State of Missouri, S
Tenth Judicial Circuit,  ss.
In the Circuit Court for the county of Bollinger, in the State of Missouri, com    menced on the Thursday before the first Monday of March, in the year of
our Lord one thousand eight hundred and fifty five.
The grand jurors of the State of Missouri, empanneled and sworn to enquire
in and for the body of the county of Bollinger, upon their oath do present, that
Sarah Buckner and Susan P. Seabaugh, late of the county of Bollinger, in said
State of Missouri, on the tenth day of January, in the year of our Lord one
thousand eight hundred and fifty-five, with force and arms, at the county of
Bollinger, in said State of Missouri, not having the fear of God before their eyes,
but being moved and seduced by the instigation of the devil, upon the body of
one Whitson Buckner, in the peace of God and the said State of Missouri then
and there living, feloniously, willfully, deliberately, premeditatedly, and of
their malice aforethought, did make an assault. And the said Susan P. Seabaugh, with a deadly weapon, to wit, one axe, which she, the said Susan P. Seabaugh, then and there had and held in both her hands, upon the head of him,
the said Whitson Buckner, then and there feloniously, willfully, deliberately,
premeditatedly, and of her malice aforethought, did strike and beat, giving to
the said Whitson Buckner, with the axe aforesaid, divers mortal wounds and
contusions upon the side of the head of the said Whitson Buckner, of which
said mortal wounds and contusions he, the said Whitson Buckner, did, on the
said tenth day of January, in the year of our Lord one thousand eight hundred
and fifty-five, at the time and place aforesaid, instantly did die.  And the said
Sarah Buckner feloniously, willfully, deliberately, premneditated]y, and of her
malice aforethought, present, aiding, assisting, abetting, comforting, and counselling her, the said Susan P. Seabaugh, at the tinme and place aforesaid, him,
the said Whitson Buckner, feloniously, willfully, deliberately, premeditatedly,
and of her malice aforethought, to kill and murder. And so the jurors aforesaid, upon their oath aforesaid, do say that the said Sarah Buckner and the saidl
Susan P. Seabaugh, the said Whitson Buckner, upon the said tenth day of January, in the year of our Lord one thousand eight hundred and fifty-five, in manner and form aforesaid, at the time and place aforesaid, feloniously, willfully,
deliberately, premeditatedly, and of their malice aforethought, did kill and
murder, contrary to the forms of the statute in such case made and provided,
asid against the peace and dignity of the State of Missouri.
H. H. BEDFORD,  Ciicuit Attorney.
And on the back of which said indictment are the following endorsements and
miemorandums, viz:
State vs. Sarah Buckner and Susan P. Seabaugh, indictment for murder. A
true bill. [Signed] Samuel Ramsey, foreman of the grand jury. Filed 3d
March,1855.  O.E. Snider, Clerk Circuit Court.  Witnesses-Belinda Bollinger,
John Seabaugh, jr., Joseph Gramds, Samuel McDowell, Frederick Wolford, Wm.
C. Lee, Susan E. Thornburgh, Anthony Leakafer. Indict. No. 3.
[The transcript in this cause is very lengthy, and we present here
only the portions of it which were read at the desk of the Secretarv.
The omitted portion of the transcript sets out the proceedings in connection with the change of venue to Stoddard county, and the first trial
of the accused in that court, setting aside judgment, efc. —REPonTER.]
And afterwards, on the 18th day of November, A. D. 1857, at the November
term, A. D. 1857, of said Circuit Court of Stoddard county, before the Hon.
Albert Jackson, Judge, the following proceedings were had in said cause, in said
court, to wit:
The State of Missouri)
verses           Indictment for Murder.
Sarah Buckner. 
"Ordered that a velire facias issue in this cause, directing the Sheriff of this
county to summons a panel of thirty-six good and lawful men from which to
select a jury in this cause."
24- - 
HIGH COURT OF IMPEACHMENT.
And afterwards, to wit, on the said 18th day of November, 1857, at the November term, 1857, of said court, before the Hon. Albert Jackson, Judge, the following proceedings were had in said cause, in said court, to wit:
The State of Missouri)
versus         Indictment for Murder.
Sarah Buckner. 
The Circuit Attorney comes, and the defendant, in the custody of the Sheriff,.
appears in her proper person. and the Sheriff returns the venipe facias in this
cause, with the names of the persons by him summoned as jurors.  Whereupon
the following jury is selected, to wit: 1 Calvin J. Lester, 2 John S. Galaway, 3
Caleb Hopkins, 4 Johin B. McPheters, 5 William Rogers, 6 Moses Harvey, 7 Dabney S. Cooper, 8 William B. Cone, 9 Henry E. Sifford, 10 John Singleton, 11
John Thomasson, 12 William Culbertson; twelve good and lawful men, who
being duly elected, tried, and sworn to well and truly try this cause; and during
the trial of this cause, the defendant's counsel proposed to ask John Seabaugh, a
witness on the part of the State, a question, which question was overruled by
the court, to which opinion and decision of the court in overruling said question,
the defendant excepts, and tenders her bill of exceptions, which is allowed and
signed, and made part of the record herein.
Which said bill of exceptions is in the words and figures following, to wit:
State of Missouri) Indictment for the murder of Whitson  Buckner.  In the
versus          Circuit Court of Stoddard County, State of Missouri, No   Sarah Buckner.      vember term, A. D. 1857.
Be it remembered, that on the trial of the above cause, the following proceedings were had: John C. Seabaugh, being introduced as a witness by the State, the
following questions were asked of said witness: "Did you ever hear Whitson
Buckner say that he had used force and committed a rape upon the person of
Susan Seabaugh, the daughter of Sarah Buckner, the defendant?" which questioin alas overruled by the court. To this defendant excepts, and herewith tenders her bill of exceptions, and prays that it may be made a part of the record.
ALBERT JACKSON.
And afterwards, to wit, on the 19th day of November, A. D. 1857, at the said
November term, 1857, of said Circeit Court, before the Honorable.Albert Jackson,
Judge, the following proceedings were had in said cause, in said Circuit Court, to
wit:
The State of MIissouri)
verses          Indictment for Murder.
Sarah Buckner. 
The Circuit Attorney comes, and the said defendant, in the custody of the
Sheriff, appears; and the jurors in this cause being all present, and during the
progress of the trial herein, the defendant's counsel asked Emma Hartle, a witness, a question, which was objected to by the Circuit Attorney, which objection
was sustained by the court; to which opinion of the court in sustaining said objection, defendant excepts, and tenders her bill of exceptions, which is allowed
and signed, and made part of the record herein; and the jury, having heard all
the testimony, retire to consult of their verdict. Which said bill of exceptions,
filed by said defendant, is in wards and figures following, to wvit:
State of Missouri)
versus        Indictment for Murder.
Sarah Buckner. J
Be it remembered, that on the trial of this cause defendant introducedi EIimma
Hartle as a witness, and, among others, asked the witness this question: " What
part of it did you hear him (John Seabaugh) state was true?" to which question
the State's attorney objected, which objection was by the court sustained: to
which opinion of the court in sustaining said objection defendant excepts, and
tenders this her bill of exceptions, and prays that the same mnay be signed, sealed,
and made part of the record in this cause.
ALBERT JACKSON. [SEAL.]
243 
HIGH COURT OF IMPEACHMENT.
And afterwards, to wit, on the 21st day of November, A. D. 1857, at the November term, 1857, of said Circuit Court, before the Hon. Albert Jackson, Judge,
the following proceedings were had in said cause, in said Circuit Court, to wit:
The State of Missouri)
versus         Indictment for Murder.
Sarah Buckner. 
And now comes the Circuit Attorney, and the said defendant, in the custody
of the Sheriff, appears; and he jurors in this cause, to wit, Calvin J. Lester, John
S. Galaway, Caleb Hopkins, John B. McPheters, William Rogers, Moses Harvey,
Dabney S. Cooper, William B. Cone, Henry E. Sifford, John Singleton, John
Thonlasson, William Culbertson, all appear here in court, and, being polled, upon
their oath do say: " We, the jury, find the defendant, Sarah Buckner, guilty of
murder in the first degree, in mnanner and form as charged in the indictment."
And the jurors in this cause are discharged. Whereupon the plaintiff, by her
attorney, move3 the court to grant a new trial herein on reasons filed.
And afterwards, to wit, on the 14th day of December, 1857, at the said Novem*ber term, 1857, of said Circuit Court, before the Hon. Albert Jackson, Judge, the
following proceedings were had in said cause, in said court, to wit:
The State of Missouri)
ver,sus         Indictmnent for Murder.
Sarah Buckner. 
The Circuit Attorney comes, and the said defendant, in the custody of the
Sheriff, appears; and the court, having sufficiently advised of the motion to grant
a new trial herein, doth consider that said motion be overruled; and the said
defendant moves the court to arrest the judgment in this cause, which motion is
overruled; to which opinion and decision of the court in refusing to grant a new
trial herein, and overruling said motion in arrest of judgmnent, the defendant excepts, and files her bill of exceptions, which is signed and allowed, and made part
of the record herein.  Which said bill of exceptions is in words and figures following, to wit:
State of Missouri        Indictment for Murder.
S verah 8   fn Venue from Bollinger county, Missouri.
Sarah Buckner.
Defendant comes and presents her motion for a new trial, which motion is in
words and figures following:
State of Missouri    Indictment for Murder.
versios    yIdemn  o  udr
vecrsues      Venue from Bollinger county.
Sarah Buckner.
Defendant, by her attorneys, comes and moves the court for a new trial in this
cause for the following reasons: 1st. The verdict is against the testimony; 2d.
It is against the weight of testimony; 3d. It is against law; 4th. The court erred
in rejecting testimony offered by defendant; 6th. The court erred in instructions
given to the jury; 7th. The court erred in refusing to give instructions to the
urv asked for by defendant.
PHELAN, MOORE &DAVIS,
Attorneys for Defendant.
Which motion was overruled. She, the said defendant, then presented her
motion for an arrest of judgment, which motion in arrest of judgment is in words
and figures following:
S        tate of Missouri  Indictment for Murder.
versucs   I Venue from Bollinger county, Missouri.
Sarah Buckner.
Defendant comes, by her attorney, and moves the court to arrest the judgment
in this cause, for the following reasons: 1st. Because the court, by overruling
questions put in cross-examination to John C. Seabaugh, the only witness introduced by the State, rendered defendant unable to make a defense; 2d. Because
244 
HIGH COURT OF LIPEACHMENT.
no judgment of capital punishment ought to be rendered on the testimony of one
' witness, without corroborating circumstances tending to prove the offense
charged.                                          WATKINS  &  PHELAN,
Attorneys for D)efendant
Which is also overruled; to which overruling defendant excepts, which excp tions she prays may be signed, sealed, and made part of the record inll the above
cause.                                                     ALBERT JACKSON.
And the said defendant, Sarah Buckner, being asked if she has anything to say
why sentence of the law should not be passed upon her, answers that she has
nothing to say but what she has heretofore said; and the said defendant having
been convicted by the verdict of the jury of the crime of murder in the first degree, it is therefore considered and adjudged by the court that said defendant,
Sarah Buckner, be taken by the Sheriff of this county to the jail of this county,
and there be kept until the fifth day of February, and that she be taken on said
day, between the hours of ten o'clock in the morning and three o'clock in the
evening, and by said Sheriff hung by the neck until she be dead, and that said
plaintiff recover against said defendant her costs and charges in this prosecution
expended. Whereupon said plaintiff prays an appeal to the Supreme Court,
which is granted. It is, therefore, ordered that execution of the sentence in this
cause be staid until the opinion of the Supreme Court can be had in the premises.
The following instructions on the part of the State were given by the court, to
wit:
It is the province of the jury to weigh the testimony, and they are the judges
of the testimony adduced before them. It is evidence of malice in all cases of
willful killing when a deadly weapon is used.  If a human being is killed by
lying in wait, or by any other willful, deliberate, and premeditated means, the
person who struck the fatal blow, and all who are present aiding, abetting, and
giving counsel to the perpetrators of the crime are equally guilty; it makes no
difference which struck the fatal blow. If the testimony proves that Susan Seabaugh struck the fatal blow, and Sarah Buckner was present aiding and abetting,
or present with the intention of assisting Susan Seabaugh, though she rendered
no assistance, she is equally liable as if she had struck the fatal blow herself.
The following instructions were asked for by defendant:
1. Before the jury can convict, they must be satisfied, beyond a reasonable
doubt, from the evidence, that the accused deliberately, willfully, premeditatedly, and of her malice aforethought, was present aiding and abetting Susan Seabaugh in the murder of said Whitson Buckner.
2. If the jury believe that the witness John Seabaugh swore falsely in any one
material part of his testimony, it should go to the discredit of the whole.
The second instruction refused.
The following is the testimony preserved and on file in the foregoing case of
the State of Missouri vs. Sarah Buckner:
John C. Seabaugh, a witness on the part of the State. Knows Sarah Buckner.
Knows Whitson Buckner.  Don't know what time it was I last saL Whitson
Buckner. I don't know the season of the year. When I saw him last, he came
up there where we lived in Bollinger county.  I don't know how long it has
been since he came there, and I saw himn. It must have been about three years
since I last saw him. Buckner was burnt up. IIow (lid he come to be burnt
up? Well, he was burnt up in the house.  Suse struck him with an axe.  Suse
threw down the axe, and mam went and picked it up, and gave him a couple of
licks.  When I say Suse, I mean Susan Seabaugh.  When I say "Main,"  I
mean Sarah Buckner. Mam told Suse to go and get the axe. Suse then went
and get the axe and brought it in the house.  Main then told Suse to do it and
strike him. Suse then went and struck him, and then he fell over, and Suse
flew back and dropped the axe, and then minam went and gave him a couple of
licks.  Then we took up the boards and put him under the floor, and then mam
tried to wash up the blood and couldn't. Then we went to bed and laid there a
little while, and main said we should get up and set the house a fire.  By "we"
I mean Suse, mnam, and I.  We took out some of the things and set the house a
245
t 
HIGH COURT OF IMPEACHMENT.
I
fire.  Maim set down and commenced crying, and said I should go over to uncle
Joe's and tell him to come over.  Joe Hahn come over then.  I think Suse went
over to aunt Malinda's, and then Malinda's two gals come over, and they staid
tire until morning. That morning Belinda moved mam  over to her house.
staid there I think one night and acouple of days.  Then one morning uncle
Joe come over to aunt Belinda,'s and said he had dreamt a dreadful dream last
night.  And he and Whitener went over to where the house was burnt and looked
for the man, and found him.  Then we went over and built a fire on him and
burnt him up.  I am speaking of Whitson Bucknler.  That fire we built would
not burn him up, and then we built another and put some of the pieces in the
fire.  Then we went back to aunt Belinda's and staid there a couple of days.
That was the last of it.  The house was set on fire and then mami went out and
commenced crying.  We put himn under the floor.  I mean by "we,"  mam,
Suse, and m(e.  He was dead when we put him under the house.  He was struck
on the back of his head, (describing it.) When mam struck him he was lying
on his back.  I don't know where mam struck him.  I reckon she struck him
two or three times. He didn't do anything after mam struck. Ile fell backwvards when Suse struck him.  When he fell down he sorter grunted, and that
was all he done. Mam struck him pretty quick after Suse did. I don't know
how long it was after mam struck him before we put him under the floor.  It
may have been ten minutes or more.  (Venue proven.)  This took place in Bollinger county, Missouri.
(CROSS-EXAMiA LNED.
I said may be it was three years, but I don't know how long.  I saw soine
plieces of him where the fire was, the day we went back to burn him up. It
was in the night when we sot the house on fire.  I was three or four steps from
Suse when she struck him.  It was in the night when she did it.  I don't know
whether there was any light in the house at the time or not-there was a
fire.  A-'rhien Suse struck Buckner, he was setting on a chair, before the fire.  I
saw him a little before she struck, and he was sorter leaninig backward.  She
held the axe with both hands.  She went up behind him  and struck him.
Buckner was in one house, and we were in the other part, when inam told Suse
to get the axe. There was a partition or some logs between the room-ns, but a [doolr]
to go through.  She spokle tolerably loud.  I was right again her, and  Bulckner
some distance from her, when she told Suse to strike him.  Suse made no fuss
when she went up to strike hinm.  When mam struck him, I was three steps
fiom  him.  I don't klnouw  where  mram  struck  him,  but along the side
of his ireck, I believe.  She stood at the side of him when she struck him.  I
didn't count the wounds I saw on Buckner.  I saw three I think-one on the
back of his head, and the other two about his throat.  I don't know  how long
the wounds were.  I saw them whilst we were putting him under the floor. [
don't recollect in what position we put him under the floor. I didn't see him
turned over after Suse struck himn. Did not see Sarah Buckner turn himn over.
I was in the same house with inam when she struck him-I was three or four
steps from her, but don't remember how I stood in relation to "main." I think
the fire was blazing at the time of the occurrence.  Susan Seabaugh was the
daughter of Sarah Buckner.
Question by Wn. G. Phelan for defense:  Did you ever hear Whitson Buckner
say that he had used force, and committed a rape upon the person of Susan Seabaugh, the daughter of Sarah Buckner, the defendant.  Question overruled and
excepted to; bill of except. fled.  Did you not in the county of Bfflinger, about
three years ago, the time you speak of, tell Enima I-artle, that it was you and
Suse who killed him. That you struck him, and that your mother had nothing
to do with it?
Answ-er.  I did not. The occurrence took place at mam's house. Hie left
miam-have no idea how long he was gone firom her.  I don't know how long he
was at mar.m's before the occurrence.  He came in the evening.  I forget who
was thei e when Buckner camne to the house.  I don't know whether niari was at
home or not when  Buckner came.  Mami  and  aunt Beliuda were there, but
whether before he came or not I don't know.  I don't know whether he had any
knife or not; I did not see any knife.  Buckner wanted the child, and minam said
she wanted it, and he said he'lowed to have it. He said he'lowed to take it
away.  They had parted.  The child was sucking.
Did not Whitson Buckner, in your presence, threaten to kill your mother and
Susan Seabaugh?  I did not hear him make any threats.  Did you not conimu
246 
HIGH COURT OF IMPEACHMENT.
nicate this to them? I did not. Did you not swear before Daniel Wolford, a
Justice of the Peace, that you struck a blow on Whitson Buckner?  (Court adjourned to 9 o'clock.)
STATE RECALLS WITNESS-THURSDAY MORNING.
T can't say how long after they parted before Buckner was killed. They just
left and quit living together.  They were just married together, and the child
I spoke of was mam's child and Buckner's.  I think mam had the child when
the lick was struck with the axe. I believe that mam sorter give up that Buckner might have the child.  Main just said he mnight have it then.  When she
apeared to give up the child Buckner was in the house.  This was may be an
half hour before Buckner was killed, but I don't know.
WILLIAM C. GRIMSLEY.
lnows Sarah Buckner when he sees her.  Didn't know Whitson Buckner.  I
know nothing about the killing of Buckner, except what Sarah Buknier and
Susan told me after the trial before the Justice of the Peace, and they were put
in my custody as Sheriff of Bollinger county.  Sarah Buckner asked nme what I
thought of her case. I replied, I did not hear the evidence. She then said, I
can tell you the whole circumstance; and then she up and related it.  She said
Buckner came to her house in the evening drunk, and abused her twice by
using bad language, and cursing her, and swearing. He wanted the child,
and she didn't want to give it up, and they couldn't come to any conclusion at
that time.  Buckner started to leave, and Malinda Bollinger, her sister, who
was then at the house, said I would give him the child that to [rather than]
have such a difficulty.  She said she consented to give him up the child, and
told her little son, John (here) to call him back. John called to Buckner and
told him to come back, mam wanted to see him. Buckner came back then into
the house, and took a chair and set down before the fire.  After setting down
before the fire, he drew a knife out of his pocket and opened it, and looked
around at her while setting in that position. I don't think she said that he said
anything-her daughter, Susan Seabaugh, came in with an axe, and came up
behind him and then struck hiim with an axe on the back part of his head, and
he fell over dead. She was put in my charge. February, 1855, I think.
CROSS-EXAMINATION.
Mr. J. Prinilgle and Susan Seabaugh were present at the conversation, and
Susan said neither yea or nay about it.  She told the same tale several times in
imy presence, but never varied in the substance of her story.  She gave as her
reasons for Susan Seabaugh killing Buckner was, that Buckner tried to have intercourse with Susan.
Question.  How old is Susan Seabaugh?
JOHN C. SEABAUGH.
Was sworn in the trial before.  Did you not swear on a formier trial that
WVhitson Buckner was leaning forward in his chair with his head down when
Susan struck him with the axe?  Don't recollect whether  he did or not.  Did
vou not swear'that you saw the eyes of Buckner after he was struck?  I don't
know as I did. Did you not swear that when Susan struck him he fell upon his
face towards the fire?  I did not.  She struck Buckner with the blade of an
axe. I saw blood flow from the wound made on Buckner's head when Suse
struck him.
FOR DEFENSE-DAVID R. CONRAD.
I knew Whitson Buckner. The last time I saw him he was at my house.  Did
you have a conversation with Whitson Buckner charged to have been killed by
Sarah Buckner, concerning his seducing or having sexual intercourse with her
daughter, Susan Seabaugh? Question objected to and objection sustained.
OpiLnion excepted.
24T 
HIGH COURT OF IMPEACHMENT.
EMMA HARTLE.
State what John Seabaugh said to you in Bollinger county about three years
ago, or about the time of the killing of Whitson Buckner took place. Question
overruled and excepted to.
Did you hear John Seabaugh say about three years ago, about the time of the
killing of Whitson Buckner, in Bollinger county, that it was he and Susan who
killed him, and his mother, Sarah Buckner, had nothing to do with it? Answer.
I heard him say part of it, and part I did not. Question. What part of it did
you hear him state? Overruled by court.
The foregoing is the testimony of John Seabaugh, W. C. Grimsley, and for defendant, David R. Conrad and Emmina Hartle.
ALBERT JACKSON.
W. CARLISLE.
Are you acquainted with John Seabaugh? I know him when I see him. Did
you hear him swear in this cause? I did. Did you not hear him say in the
town of Bloomnfield, county of Stoddard, hear him say that he, Buckner, was
leaning forward?  I did.  Did you not at the same time and place hear witness
say that he saw his eyes? I did. Did he not say that he fell forward when he
was struck. Answer. I am not sure.
The foregoing is the testimony of Carlisle.
ALBERT JACKSON.
State of Missouri, 
County of Stoddard, ss.
I, Reuben P. Owen, Clerk of the Circuit Court in and for the county of Stoddard, in the State of Missouri, do certify the foregoing to be a true and perfect
transcript of the record and proceediugs ill the case of the State of Missouri
ver.si.s Sarah Bucklner, as the same appears now remaining in my office.
In testimnony whereof I have hereunto signed my name and affixed
L.S. I the seal of said court, at office in Bloomfield, county and State aforesaid,
lI  *  U this 20th day of January, A. D. 1859.
REUBEN  P. OWEN,  Clerk.
STATE OF MISSOURI VS. CHARLES RUSSELL.
Be it remembered that on the 7th day of January, A. D. 1859, was filed in the
office of the Clerk of the Circuit Court of Stoddard county in the State of
Missouri, the following papers in the case of the State of Missouri against
Charles Russell, which said papers are in words and figures following, to wit:
To the Honorable Albert Jackson, Jtdyge of the F'fteetthl Judicial Circuit iS the
State of  _fisso,i i:
Your petitioner, the undersigned, Charles Russell, respectfully shows that he is
restrained of his liberty by William F. Cr3 ts, in the town of Bloomfield, in the
county of Stoddard, and State of Missouri: That, dn the4th day of January, 1859,
your petitioner was arrested upon a warrant or process issued by Jonas Eaker, a
Justice of the Peace in Stoddard county, and charged with passing a counterfeit
half dollar to one Thomas Jackson, and ever since the day aforesaid your petitioner has been, and still is, restrained of his liberty by said Cryts. That, on the
6th day of January, 1859, the said James Eaker, Justice of the Peace aforesaid,
examined witnesses touching the matter charged in said warrant or process, but
the said Justice of the Peace did not examine nor take the statement of your petitioner touching said matter, and commanded said Cryts to take your petitioner into
custody, and in want of bail in the sum of three hundred dollars, your petitioner
to keep in custody until the next term of the Circuit Court of said county.  That
said restraint is illegal, because the said magistrate, the said Jonas Eaker, Justice
of the Peace aforesaid, who issued said warrant or process, and committed to custody your petitioner as aforesaid, did not, at any time, take the examination of
248 
HIGH COURT OF IMPEACHMENT.
your petitioner in relation to the offense charged'as provided by law. That your
petitioner has demanded a copy of the warrant, order, or process, by virtue of
which he is restrained as aforesaid of said Cryts, and such copy was refused by said
Cryts.
his
CHARLES, RUSSELL.
mark.
Charles Russell, petitioner above named, makes oath that the foregoing petition
and the matters therein are true to the best of his knowledge and belief.
his
CHARLES ~ RUSSELL.
mark.
Subscribed and sworn to before the undersigned, Clerk of the Circuit Court of
Stoddard county, this 6th day of January, 1859.
REUBEN P. OWEN, Clerk,
by his Deputy, VAN W. HiALE.
State of Missouri,.
County of Stoddard,  88.
The State of MVissouri to  Villiatn F. Cryts, Constable  of Castor township, Stod      dar7d counity, Grecting:
You are hereby commanded that the body of Charles Russell, under your custody
detained as it is said, under safe and secure conduct, together with the day and
cause of his being imprisoned and detained, by whatever name the said Charles
Russell may be known, you have before me, Albert Jackson, Judge of the Fifteenth
Judicial Circuit of the State of Missouri, at the court house in the town of Bloomfield, in said county, on the - day of January, 1859, to do and receive what shall
then and there be considered concerning the said Charles Russell, so imprisoned and
detained as aforesaid; and hereof fail not at your peril.
Witness my hand this 6th day of January, A. D. 1859.
ALBERT JACKSON, Judge.
I do hereby certify and return that I have in custody the above named Charles
Russell, by virtue of a verbal order of Jonas Eaker, a Justice of the Peace in and
for Stoddard county, Missouri, and that no certified copy of said examination has
been delivered to me.
W. F. CRYTS,  Coistablc.
State of Missouri)
versus
Charles Russell. 
The defendant being brought before me by the said William Cryts, and he showing no authority, or mittimus, or warrant, for holding in custody, it is ordered
that the said Charles Russell be discharged from the custody of said William Cryts.
January 7th. 1S59.
ALBERT JACKSON.
[The Secretary was proceeding to read the' remainder of this transcript, when Judge Jackson objected to its being admitted as eidence,
on the ground that the portion already read set out fully all his action
and proceedings, and that the remaining papers set forth in the transcript were not filed by him, and were not a part of the record in the
cause.  Mfr. Knott stated the nature of the rmnaining portion of the
transcript, argued its admissibility briefly, and called Reuben P. Owen,
Clerk of the Stoddard Circuit Court, who testified as to the manner in
which the matter to which Judge Jackson objected was filed.  The
question for the decision of the Court then being, shall the whole transcript be admitted as evidence? the vote stood as follows:
AYEs-Messrs. Brown, Byrne, Churchill, Frazier, Goodlett, Gullett, Halliburton, Harris, Horner, Hver, MIcFerran, McIlvaine, Newland, O'Neil, Parsons;,
Peyton, Richardson, Tholipson, and Vernon-19.
249 
HIGH COURT OF IMPEACHMENT.
NoEs-Messrs. Fox, Hedgpeth, Morris, and Wood-4.
Absent-Messrs. Johnson, McFarland, Rains, Robinson, Scott, and Wilson.
Absent on leave-Messrs. Coleman and Wright.
Excused froa voting-Messrs. Jones and Watkins.
So the question was decided in the affirmative, and the reading of
the transcript proceeded as follows:]
And afterwards, to wit, on the 8th day of January, 1859, the following transcript
of a Justice's docket was filed in the office of the Clerk of the Circuit Court of
said county of Stoddard, to wit:
State of Missouri)
verstls
[Charles Russell.
Suit brought before the undersigned Justice of the Peace, upon the affidavit of
Thomas Jackson, for passing counterfeit money. Writ issued on the 4th day of
Jan'y, 1859, delivered to W. F. Cryts, Constable of Castor township, made returnable forthwith. On the said 4th day of January, 1859, said Constable returned said
writ executed, by bringing the body of said Charles Russell into court. On the 5th
day of January, 1859, the cause calld, and the detendant not being ready for trial,
for the want of witness, this cause is continued until the 6th day of J anuary, 1859.
On said day the partes by ther attys. apper and defendant puts in plea of not guilty;
the testimony in the cause being produced, and their testimony reduced to writing,
and the court after hering the testimony-it is considered by the court that Charles
Russell is guilty in manner and form as alleged in the affidavit filed, and that he
be held to bail in the sum of three hundred dollars for his appearance at the Circuit
Court to be held on the 3rd Monday of May, 1859, and that he have until 10
o'clock, the 7th of January, 1859, to fill his bond for his appearance as aforesaid;
and it is further coasided that judgment be recnded for the sum of thirty-seven
dolls and fifty cents, cost accrued in said suit. Judgment r-end on the 6th day of
January, 1859.
JONAS EAKER,
Justice of  the Peace.
State of Missouri, )
County of Stoddard. f
I, Jonas Eaker, a Justice of the Peace of Castor township, wvith and for said
county and State, do hereby certify the foregoing to be a true transcript of the
judgment in said cause, as more fully ap]prs from my docket.
Given under my hand this the 7th day of January, 1859.
JONAS EAKER,
Justice of the Peace.
State of Missouri, } 8.
County of Stoddard, i
I, Reuben P. Owen, Clerk of the Circuit Court in and for the county of Stoddard, in the State of Missouri, do certify the foregoing to be a true transcript of
the petition and affidavit, writ of habeas corpus, and officer's return thereon, and
the order of the Judge discharging the defendant, in the cause of the State of
Missouri against Charles Russell, and also a copy of the transcript o' the Justice's
docket in said cause filed in my office.
In testimony whereof, I have hereunto signed my name and affixed the
L.S. } seal of said court at office, in Bloomfield, this 9th day of February, A. D.
I 1859.
REUBEN P. OWEN, Clerk.
On motion of SEXNATOR JONEs, the Court adjourned.
250 
JUD)GE JACKSON'S OPENING SPEECH.
TENTH DAY.
THnUPSDAY, June C16). 1859.
The Court met pursuant to adjournment, and was opened by proclamation.
The managers and respondent attended.
Mfr. KNOTT announced that they had no further testimony to offer on
behalf of the State until the arrival of absent witnesses; whereupon
JUDGE JtcKsoxN rose and said:
MR. PRESIDENT, AND SE\NATORS. In going on with this case, it is proper
now for me to give you my opinion of the law governing it, as it exists in
the State of Missouri, in support of my answer to the charges against me,
and to show what the other party must confine themselves to.  I will
first call your attention to certain constitutional provisions, certain provisions of the constitution of the United States and of the constitution
of the State of Missouri.  There has been a good deal said about the law
and precedents in cases of this kind in the Congress of the United
States.  But you will see that there is a wide difference between the law
of our State, and the law of the United States. Under the laws of the
United States, Congress may try a Judge for many things that he would
not be answerable for by impeachment in our State. In this State, it is
only in certain cases can a Judge be impeached, and we shall see what
those cases are. Under the laws of the United States, all crimes aned
misdemeanors, when a Judge commits them, he can be impeached for it.
In this State, ever-v man must be tried by a jury for a criminal offense,
and there is no exception, like there is under the United States law, of
cases for impeachment.  And there's the great difference that the prosecutors in this case it seems couldn't or wouldn't understand. I will read
from the constitution, where it says that the right of trial by jury shall
remain inviolate, and that no person can be proceeded against criminally
by information or otherwise, except by indictment. These constitutional
provisions make certain rules which must guide you in this case.  But
first, you will see that there is but two classes of offenses that you can
try a Judge for. One is, for doing something, oi'r omitting to do something-some official act, which the constitution or law says he shall do.
That is one kind of misdemeanor in office. Then there is another class
of cases, where a Judge is indicted and convicted by a jury, like another
man, for some infamous crime. But first always he must be indicted
and convicted of some such crime before you can impeach him.  Then it
may be that you can go ahead upon the record of that conviction-to say
he has misdemeaned in office. You all know that the way to proceed
against a Judge whom you may think incapacitated for his office by ignorance or imbecility, or peculiarities of temper, is by address, and not by
impeachment.  The two classes of impeachable offenses, the proceeding
by address, and the right of appeal, are sufficient restrictions upon the
power of Judges. These provisions of the constitution were inserted
when it was the law that the Judges should be appointed by the Governor, and they may have been needed then; but now they are, or some
of them are, of very doubtful utility. Now, you know, if a Judge behaves badly, and the people, in whose name all proceedings against him
are to be conducted, don't want him in office, they can julst turn him
out, and put some one in his place who will suit them better. The peo
2?0'1 
HIGH COURT OF IMPEACHMENT.
pie select the Judges. Still, they might make a very bad selection; and
they might find it out, and want to get clear of him before his time
would be out; and then, if he has been guilty of any crime, it would be
the duty of the Senate, as the law now stands, to try him, when the
House impeached. The House should specify what particular crime he
had been convicted of, or what particular act he had done which was a
misdemeanor in office, and then it would be the duty of the Senate to
turn to the record and see if the thing was so, and then they would pass
judgment upon him. The Senate cannot look into his judgments and
rulings to see whether they were legal or illegal. That is the Supreme
Court's business, and the Senate cannot look into such things.
Now turn to the constitution of the State, Art. II, page (65, 1 vol. Rev.
Stat., and what do we find there? I will read:
The powers of government shall be divided into three distinct departments,
each of which shall be confided to a separate miagistracy; and no person charged
with the exercise of powers properly belonging to one of those departments, shall
exercise any power properly belonging to either of the others, except in the instan,ces hereinafter expressly directed or permitted.
Now isn't that plain and distinct? I ask you if the Legislature isn't
one of these separate and distinct magistracies, and the Judiciary another? Then it says, "' no person charged with the exercise of powers
properly belonging to one of those departments, shall exercise any powers
properly belonging to either of the others."  Now, gentlemen, if you investigate the legality or illegality of my official acts, ain't you acting in
the judiciary capacity?  Didn't they contend, in the House of Representatives, that they were a grand jury?  A grand jury cannot exist out
of the Judiciary department. Yet they all took an oath that they would
observe the constitution of Missouri.  Now if this Art. II of the constitution means anything, it must mean that when you act as legislators,
you shan't act as judiciary.  What right, then, had they to act as a grand
jury?
A Judge, like everybody else, may make mistakes in his acts. Now
his acts-if they are wrong, how is that provided for?  If he has done
anything wrong, any party may appeal to the Supreme Court and be
righted. That is the way the constitution has provided for such cases.
How then can the Legislature take the place of the Supreme Court?
How can the Senate undertake to decide with regard to the legality of
my official disposition of bills of exceptions, applications for changes of
venue, and the like of that? Now, you will remark that they don't sayt
that I did any of this for bribery.  Admit that I sent cases on changes
of venue to counties remote and inconvenient, and that it was illegal
for me to do so. Could they not appeal? My action was not final.
They could take all such cases to the Supreme Court, and if what I did
was wrong, that is the way to get at it. They,-the Supreme Judges,would rectify any errors I might make. Though you m'y think I was
wrong, that is not the way to get at it. for you to pass judgment upon
it.  In that you exercise powers not belonging to your department,
which the constitution says you shan't do, except in certain instances in
it directed and permitted.  Now, what are these exceptions?  Why they
are only in cases of impeachment. But, then, let me turn to that
clause in the constitution which empowers the Legislature to impeach,
and see what it is for:
The Governor, Lieutenant Governor, Secretary of State, Aiuditor, Treasurer,
Attorney General, an,d all Judges of the courts of law and equity, shall be liable
to impeachirenit for any nmisdemneanor in office; but judgment  in such case
shall not extend farther than removal from office, and disqualification to hold
any office of honor, trust, or profit, under this State.
252 
JUDGE JACKSON S OPENING SPEECH.
That is the constitution of Missouri. Now, the constitution of the
United States provides:
The President, Vice President, and all civil officers of the United States, shall
be removed from office on impeachment for, and conviction of, treason, bribery,
or other high crimies and misdemnealors.
You must see the difference. In one the impeachable matter must
be "any misdemeanor in offce."  In the other it is " conviction of treason, bribery, or other high crimes and misdemeanors."  Misdemeanors
in oflfce and high criimes and misdemeanors are very different things.
Now, what are misdemeanors in offce?  Where will you look for what
misdemeanors in office are? You must look to the constitution and
laws.  What does the constitution say about it?  We will look to that
first.  Well, the constitution says that a Circuit Judge must reside and
be a conservator of the peace in the circuit for which heis Judge.  Now
suppose a Circuit Judge doesn't reside in his circuit. He is not indictable for that, because it couldn't be a crime in itself. But he could be
impeached; and suppose he was, then you would inquire into that matter,-whether hlie did live in his circuit or not,-and not into his official
conduct.  You would have nothing to do with that.  Again, the constitution says that no person shall be appointed Judge of the Circuit
Court before he has attained the age of thirty years. Now if a man
does act as Judge before he is thirty, he can be impeached, and you
would inquire into his age, not into his official conduct. So it is if he
holds the office after he is sixty-five years of age. For that he would
be impeachable; but you couldn't examine into his conduct on the
bench. That is not your province.
Tile judiciary can't examine into the manner you discharge your
duties. If you are sent here faithfully to represent the people, and you
don't discharge your duties, or discharge them improperly, can they,the judiciary,-enter your province and arraign you for that? If they
were to attempt it, you would tell them " no, you can look at the laws
we pass,-you must be the judges of whether they are constitutional,but that is all you can do. You are not the judges whether they are
good or bad laws, and our behavior while we were making those laws,
is none of your business." The reason for all this is that the two departments of the government are distinct and separate, and one is not
to infringe on the other. Like any other officers of the government,
you may be arraigned for treason and bribery, and you can be indicted
for your own individual, personal crimes. So with a Circuit Judge. He
is as free as you. And his personal official demeanor is no more a matter for your courts than yours is for his.
Suppose the President of the Senate raps on his desk when he thinks
some captious member is out of order, is that insolence? Suppose the
President happens to think a member is out of order when he is in
order, and he tells him he is out of order and must sit down. -Is that
oppression in office?  Alost certainly not.  So, too, it is with the Judge
in court. It is his duty to kecp order, and whenever he thinks an
attorney out of his place, he may call him to order, and to enforce
obedience to his orders, he may send the attorney to jail. If the Judge
mistakes  his duty,-if he abuses it,-it is not oppression in office.
For his decisions, if wrong, they can be rectified by the Supreme Court,
and for all else he is responsible alone to his constituents-the people
who placed him in office, and can remove him if they see proper. If
he is not corrupt in office, he can't be impeached. But, so much for the
constitution, and all that can be learned from it about misdemeanors in
office.
253 
HIGH COURT OF IMPEACHMENT.
Now let us turn to the statutes on the same point.  In the act concerning courts, in sec. 5S, p. 541, it is provided that "no Judge shall
practice, or act as counsellor or attorney, in any court within this State."
Further, in sec. 60, it is provided that "no Judge shall have a partner
practicing in the court of which he is Judge."   Now, there are some
cases in which a Judge might commit some misdemeanors in office. If
I have acted as an attorney, or if I have had a partner practicing in any
of my courts, then I am guilty of a misdemeanor in office, and I can
be impeached.
in section sixty-three it is provided that any person violating the
provisions of this act, shall be deemed guilty of a misdemeanor in
office. Now, then, in this case, are either of these charges alleged
against me? If so, you can try it. If not, so far you have nothing
to do.
But this is one of the two classes of impeachable offenses. We will,
now. examine into the other, and see how it affects me in this case. I
read( from the constitution, article three, a section found on page 67:
S'CTION 14.  The General Assembly shall have power to exclude from every
once of honor, trust or profit, vwitlhin this State, and from  the right of suffrage,
all persons convicted of bribery, perjury, or other infamous crime.
There is the constitutional clause upon which this last class of impeachable cases is founded. Mark you, it says "all persons coonvicted of bribery,
perjury, or other infamous crime."  IHere, in the section which follows, is
another:
SECTION 15.  Every person zw/o s7aitll be conrv?cled of having, directly or ill(Ireotly, given or offered any bribe to procure his election or appointment, shall
be disquialified ifor arnyv office of honor, trust, or profit, under this State; and any
per son  who shall give   or of'er any bribe, to procure the electon or appointment
,f any other person, shall, on co?viction thereof,  be disqualified for an elector,
or alny office of honor, trust, or profit, under this State, for tell years after such
colivictin'.
Can anything be plainer than that the first thing to be done in any
case of this kind is to procure the conviction, and that no man, under
this clause of the constitution can be disqualified for office until he is
convicted.  If it is a Judge against whom such a chaiige is made, and
ne is impeached, you have nothing to do but to go to the record and see
if any conviction is set down there. The record is all you can examine.
If the party making the charge happened to be mistaken as to the existence of the conviction, the Judge would have to be acquitted.  If it
were otherwise, although you might think that the conviction was an
unjust one, the mere fact of the record showing there was a conviction
would sustain the impeachment.  There is the provisions, and I hope
the Senators will examine them carefully for tlhemnselves I conceive
the constitution on this point to be very clear. I believe I read before
that clause which says, the right of trial by jury shall remain inviolate.
I w1I come to that again, though, after awhile, in commenting upon
what Mr. Knott said in his opening remarks.  I will read this:
That, n all crimninal prosecutions, the accuse  hlas the right to be heard by
himoself and his counsel; to demnand the nature and cause of accusation; to
have comopul sory process for witnesses in his favor; to meet the witnesses against
him facse to fatce; and, in prosecutions on presentment or indictment, to a speedy
trial by an irnpai tial jury of the vicinage; that the accused cannot be compelled
to give evidence against himself, nor be deprived of life, liberty, or property,
but ty tAe f;ud5 i~at of his peers, or the law of the land.
254 
JUDGE JACKSONIS OPENING SPEECH.
And here is another section bearing on the same point:
That no person can, for an indictabl)le offense, be proceeded against criminally
by information, except in cases arising in the land or naval forces, or in the
militia, when in actual service in timue of war or public danger, or by leave of
the court, for oppression or misdemeanor in office.
You will see that you cannot proceed against me, in indictable matters, by information of oppression or misdemeanor in office, except by
leave of the court. If the House ever proceeds in this way, it must be
in cases not indictable. Now, turn to that part of the law providing for
impeachments, and you will understand this, perhaps, better than I do.
That law says, that when  a party is convicted or acquitted in an impeachment proceeding, he shall, notwithstanding such conviction or acquittal, be subject to indictment, trial, judgment, and punishment for
any indictable offense, according to the law of the land.   I hold that
if he can be indicted as well as impeached, I hold that the indictment
must precede the impeachment, and be the basis of it.  If this statute
has any other construction, it is clearly unconstitutional.
There are provisions in the constitution of the  United States similar
to those of our State constitution, which I will here pause to read, that
you may not only see what governing effect they must have in this case,
but that you may mark the difference. I read the fifth and sixth articles of the amendments to the constitution:
ARTICLE V.  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a granid jury, except in
cases arising in the land or naval forces, or in the militia, when in actual service
in time of u-ar or public danger; nor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be deprived of life, liberty, or
property, without due process of law;  nor shall private property  be taken for
public use, without just compensation.
ARTICLE VI.  In all criminal prosecutions, the accused shall enjoy the right to.
a speedy and public trial, by an impartial jury of the State and district wherein
the crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the accuLsation; to be co"nfionted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assi,tance of counsel
for his defense.
I will refer you back now to the provision of our own State constitution, which provides that the General Assembly shall have power to,
exclude from every office of honor, trust, or profit, all persons convicted
of bribery, perjury, or other infamous crime, and also to the one providing for impeachments, for misdemeanors in office.  You see that the
cases of bribery, perjury, and other infamous crimes are all provided for,
in a certain way, and that when it is sought to disqualify a man for office for one of these things, he must first be convicted. Now, let us
look after these misdemeanors in office. It is clear that mere mistakes
of a Judge are not misdemeanors. There is another provision for
them.
Now I want to illustrate the effect of the doctrine maintained here
by the managers in this case. They will admit that everybody else
but Judges can always avail themselves of the right of trial by jury.
But when any one thinks a Judge can do wrong, what can he do?
Why, he can try to get him indicted; and if he don't succeed in that,
he can go up to the Legislature, drag the Judge after him, and there
cut him off from the means of defending himself before an impartial
jury of the vicinage.  If he commits any offense, it would be better,
under this view of the law, not to try to indict him.  No, you could in —
255 
HIGH COURT OF IMPEACHMENT.
flict on him a much worse punishment. He may have acquired a name
that he was proud of; but cutting him off from the means that other
men have to defend their fair names, you tell him to go forth disgraced,
and that he is not worthy of any trust or honor. And this is to be
done, not by the people who elected him, but by the Legislature. The
statutes have laid it down that the people have a right to choose their
own Judges.  But here it seems that this is a mere cheat.  After they
have elected a Judge, if he does not suit the Legislature, they dismiss
him with disgrace.  This is the kind of doctrine that the managers are
maintaining here. They say, to be sure, if a Judge has committed a
crime, he may be indicted; but we won't do that.  He is a stain upon
the judiciary of the whole State. We must select a mode of trial for
him where he will have no chance. He must be tried, not in a court,not in a proper tribunal accustomed to the protection of innocence and
the punishment of guilt,-but you take him without indictment or
sufficient specific charges and try him in the Legislature. If he were
indicted, like others, he would have a hand in the selection of a jury.
Here it is different, and he can do nothing of the kind. You recollect
that the constitution says a man cannot be deprived of life, liberty, or
property, but by the judgment of his peers, or the law of the land.
Now haven't I, as a Circuit Judge, a property in this office. It was given
me for a time by the people. Most certainly I have a property in it.
And will you take it away from me without the judgment of my peers?
Who are my peers?  1 tell you plainly that you are not.  My compeers
are higher than Senators, or Governors, or Representatives. A Judge
does not cease to be a citizen, and as a citizen, citizens are his compeers.
He has a right to select the best of them, and when he does, he selects
higher than Senators or Representatives. I mean no disrespect. Your
capacity of citizen is higher than your capacity of Senator, and higher
than any other capacity. A good citizen is nothing more nor less than
an honest man, and "an honest man is the noblest work of God."
I have thus given you my views of the constitutional aspect of this
case, not because I wanted to be technical, but because I wanted you to
get at the foundation of the law on this subject. I would not avail myself of a merely and exclusively technical defense. I will now pass to
this law which they say these articles are particularly founded upon.
You will readily see that the whole or nearly the whole of this article
in the criminal code of our State, rests on the provision of the constitution to which I referred you. I will read several sections to get at
the connection of the section that they claim as giving authority for
the proceedings here against me, giving you my comments as I go on:
SrEcTIoN 1.-Every person wrho shall, directly or indirectly, give any money,
goods, right in action, or any other valuable consideration, gratuity or reward,
or any promise, undertaking or security therefor, to anyv officer of this State, or
of any county: Fi'st, With intent to influence his vote, opinion, judgment or
decision, on any question, matter, cause or proceeding, which may be then pending, or may, by law, be brought before him in his official capacity,or to induce
him to neglect or omit the performance of any official duty, or to perform such
duty with partiality or favor, otherwise than is required by law; or, Second, In
consideration that such officer hath given any vote, opinion, judgment or decision, in any particular manner, upon any particular side, or more favorable to
one side than the other, or [on] any matter, question, cause or proceeding, or
hath omitted to perform any official act or duty, or hath performed such act or
duty with partiality or favor, or otherwise contrary to law, shall, on conviction,
be adjudged guilty of bribery, and be punished by imprisonment in the penitentiary for a term not exceeding seven years.
It is plain that there is nothing in this section especially applicable to
Judges. It was intended by it to provide a punishment for the man or
256 
JUDGE JACKSON S OPENING SPEECH.
person who bribes a Judge, rather than to the Judge. It applies to the
man who gives a bribe-not to the man who takes it.  But here is the
section that follows:
SECTION 2. Every such officer who shall, directly or indirectly, accept or receive
any gift, consideration, gratuity or reward, or any promise or undertaking to
make the same: First, Under any agreement that his vote, opinion, judgment
or decision, shall be given in any particular manner, on any particular side, or
more favorably to one side than the other, in any question, matter, cause or proceeding, which may be pending, or be brought before him in his official capaeity,
or that he shall neglect or omit to perform any official duty, or perform the same
with partiality or favor, or otherwise than according to law; or, Second, In
consideration that he hath given his vote, opinion, judgment or decision, in any
particular manner, on any particular side, or mare favorably to one side than
the other, of any question, matter, cause or proceeding, or hath neglected or
omitted to perform any official act or duty, or performed such act or duty with
partiality or favor, or otherwise contrary to law, shall, on conviction, be adjudged
guilty of bribery, and shall be punished by imprisonment in the penitentiary
for a term not less than two years.
That section, now, applies to Judges, as well as to other officers. Read
it,-look at it yourselves,-and say if you could take cognizance of an
offense of this kind before there was a regular trial and convyiction in a
regular criminal court. You couldn't do it. You couldn't think of
doing it. If a Judge has been bribed, he is thereby disqualified for his
office.  But that part of his punishment is not admninistered by the
court which tries the fact of the bribery, but is tadmninistered by the
Court of Impeachimient-, which can only inquire if there has been a
conviction.
The next section of this article applies to persons using bribes to procure offices and appointments.  And so on with the twelve sections
which follow. They fix penalties for the various forms that bribery and
corruption in office may assume. None of them apply to Judges in the
corrupt discharge of their duties,-except the second, which I have
read.  But the law goes on, pointing especially at Judges first, and then
on down, and after enumerating almost every kind of officer, or the
form that corruption would assume in almost every kind of office, we
have the sixteenth section, which I will read:
SECTION 16. Every person exercising or holding any office or public trust, who
shall be guilty of willful and malicious oppression, partiality, misconduct or
abuse of authority in his oflicial capacity, or under color of his office, shall,
on conviction, be punished  by  imprisoii-nent in a county jail for a termni
not exceeding one year, and [by] fine, not exceeding one thousand dollars.
Here is the great thing upon which they rely in this case. Under
this section I have been arraigned before you, and I hold that there is
nothing in the section having a more direct application to me than to
any one of you.  If my office is one of public trust, yours is also. If I
am responsible under this section for a mistake as to my authority and
of the law, you are equally responsible for mistakes in your legislation.
How does it stand with you when you pass an unconstitutional law?
You do that occasionially, you must admit, and when you do, are you
individually and collectively indictable?  I hold that an office of public
trust,-such a one as is meant by this statute,-does not include either
a Judge or you. It refers to ministerial officers. I am as clearly exempted from the special operation of that statute as you are. If I
could be indicted under this section for official acts, you could also, and
then how would it be?  According  to Mr. Knott,-that is, if Mr.
Knott's notion of this section is correct,-you could be indicted for
almost every and any official act in which you participate. You may
17
S,57 
HIGH COURT OF IMPEACHMENT.
vote for railroad bills. The opponents of these bills say it is highhanded oppression in office, and indict you for it. You may vote
against them, and the friends of the roads indict you for willfully and
maliciously neglecting and refusing to advance the best interests of the
State.  Mir. Knott's construction of this statute would lead to this with
you. W~ith me it would be worse, because the instances when people
are dissatisfied with decisions against them by Judges are more frequent,
perhaps, than with laws.
But, even if I am indictable for my official acts, by this section, that
does not make it right to impeach me for them.  And if I am impeached
for them, it doesn't dispense with the necessity of having a record of a
conviction for them in the impeachment court. The law does not stop
at this point exactly. I will read the seventeenth and eighteenth sections:
SECTION 17. Every officer or public agent of this State, or of any county, who
shall commit any fraud in his official capacity, or under color of his office, shall
be adjudged guilty of a misdemeanor, and punished by iniprisonment in the
county jail for a term not exceeding one year, or by fine, not exceeding one
thousand dollars, or by both such imprisonment and fine.
SECTION 18. Every person who shall be duly convicted of any of the offenses mentioned in the preceding sections of this article, shall be forever disqualified from
holding any office of honor, trust or profit, under the constitution or laws of this
State, and from voting at any election.
The twenty-third section also has some bearing on this point, and I
will here read it:
SECTION 23. Every oflicer who shall be convicted of any official misdemeanor
or misconduct in office, or who shall be convicted o? any offense which, by this
or any other statute, is punishable by disqualii t.tion to hold office, shall, in addition to the other punishments prescribed for such ofeinses, foifeit his office.
From all these sections it is very plain that those who hold me, or any
Circuit Judge, amenable for any alleged offenses under these sections,
are mistaken as to the meaning of the sections; and if they are not mistaken about that-if Circuit Judges are meant  the only or first thing
to be done, is to indict and procure a record of conviction, to be used in
divesting the Judge of his office.  So far as that is concerned, however,
as I have before said, I would waive the necessity of an indictment if
there was any plainly stated and specific charges brought against me.
In this sixteenth section, we read the punishmnent of an offense styled
willful and malicious oppression" in an official capacity.  Now, how
can that apply to a Judge? It is the duty of a Judge to declare the law
-not to execute it. If he declares the law to be so andc so. that cannot
be oppression in the Judge. If the effect is oppressive, it is the oppression of the law-not of the Judge. The consequences of the law being
declared and ruled in a certain way, are not to be reckoned back to a
Judge in that way, surely.  When a Judge sentences a convicted criminal, it is not the personal, individual act of the Judge.  No strictly official acts are personal acts.  And when an instance of oppression comes
up, it is the oppression of the law, and cannot be of the Judge. A Constable, Jailor, or other ministerial officer, may act very oppressively under color of discharging his duty; but it is absurd to say that a Judge,
whose province it is to say what the law is, can be oppressive in declaring that law to be in a certain case as he conceives it to be. When he
enforces a decision, he enforces the law. When his decision is oppressive, the law is oppressive. Now, it is against the theory of our government, and against common sense, to call law oppressive. It might do
in some particular instances to say that certain enactments of law were
258 
JUDGE JACKSON iS OPENING SPEECH.
unwise, and had an oppressive tendency.  But the law cannot be will   fully and maliciously oppressive. You cannot impute malice to law. If,
then, it is the province of the Judge to declare the law, and his decisions
are law. his decisions are no more oppressive than the law. The only
way to avoid this conclusion is, to deny that the decisions of a Judge are
law, and that would not help the matter for the prosecutors in this case;
for when a Judge of the Circuit Court declares the law in a case to be
so and so, who can review his decision, and say it is not law? Who can
overrule the decisions of a Circuit Judge? No earthly power but the
Supreme Court. The constitution and laws of this State give you-gives
this Senate-no such power; and I will not suppose that it seeks to ex  ercise it by usurpation.
But, gentlemen, so much for the law of this case.  I will now advert
to the facts. I hold that neither in the constitution, nor laws, nor even
in the celebrated section paraded here by Mr. Knott, is there any ground
for this proceeding against me.   But that is not all.  Even the facts
don't make out any case. I propose now, gentlemen, to run over, as
briefly as I can, the facts elicited from the State's witnesses that have
been examined, and, in doing so, I shall detain you but a short time.
MiIr. KNOTT objected that this was not the proper time for the respon  dent to comnment upon the evidence adduced by the State, and that he
could now merely state the grounds of his defense.
Mr. HIARDIN supported the position of his colleague by a reference to
several authorities, and argued the impropriety and illegality of the
course proposed by the respondent.
SER\-TOr[S PARSONS, WVATKINS, SCOTT, GOODL,ETT, and WIVi,so., stated the
practice of the courts with which they were respectively fami'iar in re gard to this point; and an animated discussion was going on, when
JUDGE J.ACKsON said: I have no wish to comment upon the evidence
any further than is necessary in stating the grounds of my defense.  I
will endeavor not to violate the rule as it seems to be understood by the
Senate, and, if I do so, let me be stopped.
I now propose to look at the articles of impeachment in this case firsts
and in connection with my comments upon them, to state such facts as
I deem material to my defense.  In doing this, I will allude to the na ture and quality of the language in which the charges against me are
dlressed, and also to the nature of the acts imputed to me.  I shall en deavor to show that these articles of impeachment have been got up in
a manner which ought not to'have been exhibited.
Now, it is almost the universal opinion,-it is the belief and opinion
of the whole State, and perhaps of the whole United States,-that when
a Judge is impeached, his own personal, individual character goes in
with it; in other words, that to attack a Judge by impeachment is to
attack his character. Yet it is obvious from an examination of our law
that an impeachment in this State does not involve character, at all.
The article of the constitution providing for impeachments provides
simply and only for misdemeanors.  Now, there is nothing dishonorable
or infamous in these misdemeanors.  It is a misdemeanor for which a
Judge can be impeached to practice law.  Yet is not dishonorable to
practice law. It is a misdemeanor for a Judge to be under thirty years
of age.  Yet there is nothing disreputable about that.  And it is certainly not discreditable or dishonorable to be over sixty-five.  I have,
heard it said, on the contrary, that gray hairs were as good as curls. Yet
a Judge is not permitted to be over sixty-five, and if he acts as such
after he has attained that age, he commits a misdemeanor for which he
can be impeached. There is nothing dishonorable if a person doesn't
take an oath to faithfully do so and so. Yet a Judge can be impeached
for that.  There is nothing criminal about any of these things-nothing
259 
HIGH COURT OF'IMPEACHMENT.
involving character. So it is if a Judge doesn't reside in his circuit.
Suppose the Judge of the Fifteenth Judicial Circuit chooses to live in
St. Louis or Jefferson City; they are pleasant enough places, and it is
not disreputable to live in either place. Yet the Judge could be impeached for it. This is the entire list of impeachable misdemeanors in
office.  I leave the other class of impeachable offenses out of view, now,
because none of them are alleged against me.  In this whole list there
is not one act dishonorable or disreputable in itself.  Would it not have
been easy enough, then, to have stated the charges against me in temperate language, without reflecting upon my character as a man. These
articles do reflect upon my character in a most unwarrantable manner.
It may be said that they have attempted to charge me with other acts
than those I have named, but still I think that the charges might have
been and should have been put in dignified, respectful language.  It is
nothing to me that I may be at liberty to reply in the same tone and
style.  There is no use in my showing how bad the House acted in the
matter, and how they were all led away from reason and law by a few
interested men, who had managed to get themselves on the Judiciary
Committee.  These things may be so, but really I don't like to be arraigned on such charges, and dislike to make such a defense to any
charge.
Look at the beginn;ing of this thing. At first it is the act,-the solitary act of one man,-and that man one who it is notorious was my
-competitor for the position which I hold. When that man failed to turn
me out of the office by producing dissatisfaction among  the people of
my circuit,-when my circuit refused to be dissatisfied with me,-and he
could not effect his object in that way, then he appeals to the Legislature to do it.  The General Assembly is called upon to do what the people have had an opportunity of doing, anid what they would not do.  It
does seem to me that the Legislature, in considering this matter, ought
to have looked at it like other sensible men are bound to do. If the
complaint comes only from one man, they should weigh that complaint
more. The fact that there is now and has been no general complaint
is a material fact for you to notice. By looking over the business of the
House you will see that the petition of Solomon G. Kitchen alone
started this whole proceeding.  I believe you all want to do me justice.
X believe there isn't a Senator here, but that would rather I should be
able to maintain my rights than that I should fail of doing so.  Then,
I say, if you have doubts on the score of my guilt or innocence, let your
minds revert to the origin of this matter. IReflect that it is a notorious
fact, that a single citizen of my circuit, and that one a notoriously embittered personal enemy, has instituted these proceedings, and evidently
not because he believes or can establish the fact that the people of the
circuit will support him in it, but because as a Judge and man  I have
acted in such a way as did not suit him or his purposes.
But you can look at this point in another light.  Now, then, let me
suppose that you take it for granted that this single citizen of my circuit
had a right to institute these proceedings against me. Let it be assumed
as a prima facie case that this citizen is honestly of opinion that I ought
to be impeached for the good of my country, and not to gratify his per sonal enmnity, and that he came here in all honesty and sincerity, and
did this thing out of respect for his country's laws.  Now, then, if this
is the prima facie state of the case, most certainly I have a right to
show that that is not the fact, and that the proceedings against me
were conceived and brought forth by malice alone.  And to do this, I
have only to point out the petition with which the thing was done, and
ask you to compare it with the articles of impeachment.  The petition
contains almost an entirely different set of charges from that set out in
'260 
JUDGE JACKSON S OPENING SPEECH.
the articles. After he got here, and was fully counseled and advised
about the matter, he concluded to abandon the charges on which he
came here, and substitute new ones. This, of itself, is a very significant
circumstance. There is one instance particularly, to which I must di  rect your attention.  In the petition, at one point, I am charged with a
great outrage in refusing a trial to a man, and it was alleged that I
thereby caused his death. This was a great thing, and much parade
was made of it in the petition. Well, now, look through the articles of
impeachment and you will see that that g,reat charge has entirely dis appeared.  It seems they couldn't get this charge that I had killed a
man through the committee. Now, what was the reason? When it
came up in the committee room there was considerable discussion
over it.
Mr. KxOTT.  Mr. President:  No testimony has been offered in rela tion to this matter. None can be offered, because it is a wholly outside
matter. With what propriety, then, can the respondent go on in this
style, with assertions about the committee of the House which he can not substantiate with proof, and which the rules of evidence would not
permit us to contradict? I certainly think it is out of order.
JUDGE JACKSON. Never mind, Mr. Knott. Wait till I get through,
and you will see that what I say is material enough. It may interest
you more than you think for now. It seems that the committee had
got hold of my reason or excuse for not trying the man, and it affected
some of them more closely than they expected.  I did not know what
the jury law for that county was, because, although one had been
made for it, I had received' no copy of it, as I should have done, and
the fault lay near the doors of the committee itself  One of the committee who was familiarly designated as Charley was quite anxious to
put this killing charge in.  But another said, "Now, Charley, you
know that won't do. You know who is to blame for his not getting
the jury law, and at last that will come out; and who will be sued, if
it does come out?"  And there was something about a squib which
settled the matter.
SENATOR TnOImPSox said that he thought the respondent was  now
clearly out of order.  He had expected him to confine himself, in his
remarks at this time, to the law and the evidence upon which he expected to base his defense; and he had no desire to hear the strictures
upon the committee which the respondent was now uttering.
JUDGE JAcK:soN.  I was only illustrating the grounds of my defense.
If it is wrong in me to defend myself from these charges in this way, it
was wrong ever to make them.  I was only stating this circumstance to
illustrate how it was  SENATOR RcH.ARDsox, (in the chair.)  This matter of which you have
just been speaking, has certainly nothing to do with the case, Judge
Jackson, and I thinik, it would be much better for you to drott, and
continue your remarks upon topics which you can discuss with more
propriety.
JuDGE JAcKSON-.  WVell, it seems this squib case is ruinous to some of
the committee, and I will pass it for the present. I will go now to the
articles of impeachment.  I will read the first article:
ARTICLE I. That, unmindful of the sacred obligation by which he stood bound
to discharge the solemn duties of his office faithfully, impartially, and consistently
with the dignity and importance of the trust reposed in him, as Judge of the Fifteenth Judicial Circuit, in the State of Missouri, the said Albert Jackson, at a
Circuit Court begun and held at the town of Bloomfield. within and for the county
of Stoddard, in the State of Missouri, on the third Monday in May, A. D. 1858,
(whereat the said Albert Jackson, by virtue of his office aforesaid, did preside as
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lIGH COURT OF IMPEACHMENT.
Judge,) did willfully and maliciously conduct himself in a manner highly oppressive and unjust to one Jonas Eaker, viz:
First. The said Albert Jackson, desiring to harrass and oppress the said Jonas
Eaker, did, at the Circuit Court aforesaid, whereat he, the said Albert J ckson,
presided as Judge, as aforesaid, cause an attachment to issue against him, the said
Eaker, as for a criminal contempt, because said Eaker did not make return to a
writ of mandamus, which writ had never been delivered to said Eaker, but of
which a copy had been delivered to said Eaker; by virtue of which attachment the
said Jonas Eaker was arrested and held in custody for several hours, and released
finally by said Albert Jackson, on condition that he, the said Jonas Eaker, should
make return to the copy that had been delivered to him, said Jackson well knowing
that said writ had never been legally served upon him, the said Eaker, and that he
was not in contempt for not answering thereto.
Second. In refusing to permit counsel for said Eaker to speak in his behalf, when
they proposed to show to the court that said writ of mandamnus had never been
properly delivered to, or served upon him.
Third. In peremptorily, and in an oppressive, angry, and insulting manner, ordering the counsel of said Eaker, to wit, Solomnon G. Kitchen  and William G.
Phelan, to shut their mouths and sit doirn, when they, in behalf of their said client,
attempted to suggest an insufficiency in the service of said writ of mandamus.
Fourth. In depriving said Jonas Eaker of the benefit of counsel, and of the
privilege of speaking through such counsel in his own defense, as he had a lawful right to.
I had intended to take up the articles one at a time as they conme in
order.  But for want of tinme I will limit myself to a brief notice of the
four or five different classes of charges without regard to the number
of the articles in which they are contained.  I will allude to this charge
in the first article, and then notice all the charges belonging to the
same class.
The gist of this charge is that I told two attorneys to shut their
mouths and sit clown, upon a certain occasion, and that the whole transaction constitutes an instance of oppression towards individuals and
lawyers. I believe this is the only instance in which I am charged
with any oppression of any individual other than a lawyer. Now, it is
useless for me to tell you what the law is about such cases as these, and
I think you will see from the nature of the transaction, as it has been
and will be detailed in evidence, independent of any reference to the
strict rules of law, that there was no oppression in this whole transaction.
I contend that a Judge has a right to enforce order in his courts, and to
compel refractory parties to submit to the process issued from his
courts. I read from the statute in relation to courts:
Each court may enforce, by attachment, the return of any writ or process sent
out of the samne court.
Now, it is not only the right of a court to do this, but it is the duty
of the court to do so, whenever a case of the kind arises. And such a
case was here. A mandamus had issued from my court. The party
was not in attendance; he conceived that he had a defenfe which he
could keep all to himself; he has a reason for making no return and he
keeps that reason to himself. Now, I could do nothing but issue an
attachmnent under the circumstances.  I told him when he was brought
in that he could not pursue that course, and that if he had a reason for
not answering, he must state what it was, and that was all that was necessary.  As to the attorneys, they claimed to be the next friend of the
court. I thought they had no right to appear in that capacity, and
they thought they had, or seemeed to think so; and were importunate
about it. Now, when there is a difference of opinion between the
Judge and the lawyers, who is to decide? I didn't think they had anything to do with it. They thought they had. I decided against them,
and for myself, and that was my offense.  Their pertinacity may have
262 
JUDGE JACKSON S OPENING SPEECH.
ruffled me for a moment, and I may have been compelled to speak to
them decidedly to make them desist.  But in all that I cannot conceive
that I was out of the line of my duty; and if I were mistaken as to my
right or duty, who but the Supreme Court can overrule my decision?
But I will leave that and go on to the next article.
In this next article I am charged with secretly advising a Mr. Walker
as to the best course for him to pursue in regard to a suit against him
by a Mr. Moore. I believe there are three or four cases of this kind
where they have attempted to make a charge against me out of my
conversations with parties to suits. In regard to this Moore and Walker
case, I believe it will turn out in the testimony that the conversation
alluded to took place after a change of venue had been taken in the
case, which sent it out of my circuit; and that I spoke of the suit only
as an individual and not as a Judge. When a man becomes a Judge,
he still has feelings and interests in common with his neighbors,-the
same feelings and passions that he had before; and a suit likely to affect
his own rights or property would be a subject on which he might very
safely converse with a neighbor. I know of no law forbidding a Judge
to take a part in the general concerns of his town and community. I
think it will appear from the evidence that this conversation between
Walker and myself was a merely casual one, and that I did not give
him any advice; and that I was not stirring up strife or litigation, or
anything of that kind.  I think Mr. Walker's statement of the affair
will bear me out in representing these facts to you. I will read the
specification in this article:
Firsft. During the Circuit Court aforesaid, whereat said Albert Jackson presided as aforesaid, there was pending before said court the cause of Matthew IH.
Moore v. Jarnes Walker, and the said Albert Jackson, corruptly, partially, and
to the utter degradation of the solemn and important functions of his said office,
secretly advised the said Jamnes Walker, defendant in said cause, not to compromise the same; that the field notes by which the property in dispute between
him and the said Moore could be identified, were lost, and that said Walker would
be successful in said cause, if he would refuse to compromise the same; and that,
in consequence of the prejudice of the said Albert Jackson, the said Moore was
compelled to have the venue in said cause changed.
My answer to this, gentlemen, is simply that I did not secretly advise
MIr. Walker not to compromise, or give him  any other secret advice
whatsoever; and that our conversation was a casual one, in which there
was no departure from my duty as a Judge and as a citizen.  I think
you will see that the charge is not true in fact and ought not to have
been made.
I will now turn your attention to the next three articles all together:
ARTICLE III.  That, actuated by a spirit of arbitrary despotism and wanton injustice, totally repugni ant to the sacred duties pertaining to his office, and highly
dangerous to the rights of the citizens of the State, the said AlbertJackson,
Judge of the Fifteenth Judicial Circuit, at a Circuit Court begun and held within and for the county of Wayne, in the State of Missouri, at the town of Greenville, in said county, on the last Monday in September, A. D. 1858, whereat said
Albert Jackson, by virtue of his office aforesaid, presided as Judge, was guilty of
willful and malicious oppression, misconduct, and abuse of authority in his official capacity:
First. During the Circuit Court aforesaid, at the time and place aforesaid,
David M. Fox, one of counsel for plaintiff, in the cause of        ILimbarger vs.
Power, then and there pending before said court, presented a petition to
said Albert Jackson, then and there presiding as Judge of said court aforesaid,
to change the venue of said cause to some other court, because of the prejudice
of the Judge, and informed him, the said Albert Jackson, that both parties and
their counsel had agreed that said cause might be sent to either the county of
Madison or the county of Iron, as either of said counties would be convenient
263 
HIGHII COURT OF IMPEACHMENT.
and easy of access; but the said Albert Jackson, Judge as aforesaid, utterly unmindful of the rights of the parties and counsel in said cause, and totally disregarding the provisions of the statute in such cases made and provided, and willfully and maliciously intending to harrass and oppress the parties aforesaid, and
their counsel, awarded a change of venue  in said cause  to -lfississippi county,
well knowing said county to be remote, difficult of access, and inconvenient to
all the parties, counsel, and witnesses in said cause.
Second. When counsel engaged in said cause, to wit, David M. Fox and Philip
Pipkin, attempted then and there to prevail upon him, the said Albert Jackson,
to change the venue to some other county more convenient to all parties, and
informed him that by sending said cause to Mississippi county he would deprive
them of the privilege of attending to their clients' cause, as they had been employed to do, he, the said Jackson, replied to each of them in an opplressive,
inselent and insulting manner, highly shameful and derogatory to the dignity
of the important position he occupied as Judge, as aforesaid.
AR.TIeCLE  V.  That, influenced by a similar spirit of injustice and tyrannous
disregard for the rights of the citizens of the State, the said Albert Jackson, at a
Circuit Court begun and held within and for the county of Dunklin, at the town
of Kennett, in said county, on the second Monday in Aiay, A. D). 1858, whereat
he, the said Albert Jackson, presided as Judge, did conduct himself, in his official capacity, in a manner highly oppressive, unjust, and tyrannical, viz:
Fiirst. During the sitting of the Circuit Court aforesaid, at the time and place
aforesaid, counsel for the defendant, in the cause of           Smith vs.
Cude, then and there pending before said court, whereof said Albert Jackson was
Judge, presented to said Albert Jackson, Judge of said court, a petition to change
the venue of said cause to some other court, on account of prejudice on the part
of the Judge; whereupon said Albert Jacl:son, willfully and maliciously intending to harrass and oppress the parties and counsel in said cause, awarded a
change of venue in said cause to the coue(y of Pemriscot, notwithstanding he was
then and tihere assured by counsel for both parties in said cause, that said county
was difficult of access, and inconvenilent to both parties and witnesses; that
both parties to said cause had agreed that the venue of said cause should be
changed to Bolininger oi Scott coulntyv, either of which would be mnuch more colnvenient to all parties than the county of Pemiscot, and that if said cause should
be sent to the counIty of Pemir cot, counsel for both parties would be compelled
to abandon it; and to the earnest entreaties of counsel for both parties in said
cauls, that a change of venue therein might be awarded to some other county
where it wvould be possible for themn to attend to it, and that would not be so difficult of access, and inconvenient to the parties therein. he, the said Jackson,
angrily, rudely, and insultingly replied, in a manner indicating a total disregard for that courtesy towardi counsel, and respect for the rights of parties, that
common decencyv and the duties of his ol-ice required.
A,TICLE V.  That saidl Albert Jackson, Jidge as aforesaid, has, in numerous
other instances, been guilty of willful and magicious oppression, misconduct, and
abuse of authority, in awarding changes of venue in causes pending before him as
Judge as aforesaid, to counties remote, inconvenient, and difficult of access, intending thereby to harrass and oppress counsel and parties, and to deter others
from availing themselves of their right to a change of venue under the law; particularly at a Circuit Court begun and held at the town of Kennett, within and
for the county of Dunklin, on the second Monday in May, A. D. 1858, whereat
said Albert Jackson presided as Judge:
First. In awarding a change  of venue in the cause of the Point Pleasant
and  Dunklin  County Road  Company  Us. Moses  Farrar, then and there
pending, to the county of Peaiiscot, well knowing said county Co  be  inconvenient  and difficult of access to the parties to said  cause,  and  contrary
to the earnest request of both parties to [have] said cause [removed] to some
more convenient county.
Second. In awarding a change of venue in the cause of said Road  Company
vs. Nathaniel G. Murphy, then and there pending, to the said county of Pemiscot, well knowing the same to be difficult of access and inconvenient to both
parties and counsel.
My action in four cases is here complained of, and the principle is the
same in all.  Now, when an application for a change of venue is made
by either party to a suit, the law is that the Judge shall send the case
to some convenient county,-to a county as convenient as may  be to
264 
JUDGE JACKSON'S OPENING SPEECH.
the opposite party.  I think I will be able to prove that I have done
this in these cases, or at least that I have done so according to the best
of my judgment. But as you do not and cannot know the state of the
business in the surrounding counties, and are not, perhaps, acquainted
with that country, I do not see how you can decide that matter. It
isn't always the nearest county that is as convenient as may be to the
opposite party. And sometimes it is hard to say which would be the
most convenient county. In such cases, who is to decide the question?
Evidently it is not the counsel who presents the application. Hie can
have nothing to say in the matter.  And it is not the duty of the court
to consult the convenience of the attorneys on either side, as they have
no rights in regard to the matter to be consulted. If any such case
as is here stated were to arise, where both parties desired a case sent
to a certain county, nothing is easier than for them to take the case to
that county by agreement, and the Judge's notion about it need not
be consulted. -That such is the law, no one will dispute, and it is a fact
which shows that there was no such agreement in any of these cases.
Then, again, if the Judge is in error about which is the proper county
to send a case to on change of venue, and is obstinate in supporting
his error, what is the remedy? The Supreme Court, of course. This
Court certainly has no power to review my official acts in connection
with cases like these. If I, by any mental or physical defect, could not
decide correctly in these cases as to my duty, and such instances were
of frequent occurrence, it is possible that a proceeding by address might
be made to remove me from office. But if I was simply in error, and
there was no corruption about it, nothing but the Supreme Court could
set me right.  But, gentlemen, I was not in error about these cases.
You should have my experience in such matters in that country.  You
should understand the effoirts of these lawyers at such times to have
cases sent to such places as would give them undue advantages,-places
where they reside themselves, and where, however inconvenient it
might be to the parties, they would have things their own way.  If you
could see and know all these things as I have seen and known them,
you could then say whether I was right or wrong, and I would not fear
your judgment. So far from there being anything oppressive, wanton,
corrupt, malicious, or tyrannical, in my conduct, (I believe those are the
principal adjectives used to describe my course,) you would say I did
my duty.
In the next article, article six, a case tried at Poplar Bluffs, Gibson vs.
Dunn, is rehearsed, and I am charged with an offense belonging to another class. I am charged here with oppressing a lawyer. What I have
to say to this, applies to all the instances of the kind, and I will try to
notice them  all together.  The charge is, speaking to lawyers in an oppressive and harsh manner.  Now, then, gentlemen, I will endeavor to
make the evidence show you under what circumstances every instance
of this kind occurred. It is true, that when I am exasperated and excited, I sometimes use violent expressions.  In this Gibson ancDunn
case, 1 don't think I used the language imputed to me.  My recollection
is, that I asked him, on this or some other occasion, if he didn't think
it was possible for him to keep his mouth shut a moment.  Many times
I have been much troubled and annoyed by the pertinacity and importunity of this Mr. Phelan, and would have to speak to him in this style to
get him to stop something which I conceived hlie had no right to do or
say.  Surely I had a right to do this, and it was my duty to do it.
Wouldn't it be a ridiculous thing to impeach the Lieutenant-Governor
for calling me to order in this Court where he presides, even if he found
it necessary to speak to me in a peremptory and decided manner?
These charges against me are nlo less ridiculous. It was my duty to keep
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HIGI COURT OF IMPEACHMENT.
order in my courts. That was one of the solemn duties incumbent upon
me, which have been paraded before you so much. Am I to be turned
out of office, and held unworthy of the trust reposed in me by the peo ple, for discharging this solemn duty according to the best of my ability?
I think not. I take it that a Judge is not impeachable for any thing of
the kind. There is no court in which some unpleasant occurrences of
this nature are not witnessed. ULntil lawyers and Judges become an gels, such occurrences always will be witnessed, and it is folly to arraign
a Judge for doing, at such times, what he conceives to be his duty. It
is worthy of remark, that only four or five such cases are set down here
against me, although my whole course as a Judge has been carefully
scrutinized to find similar charges. And in the few instances cited, there
is not the smallest circumstance to indicate, even if I were in error at
the time, that my error was the result of, or grew out of corruption.
They have not even attempted to show that I acted corruptly in a single instance. All I ask of you in regard to these charges, is this: Remember that when there was a difference of opinion, it was my province
to decide, and place yourselves in my circumstances, and see if you
would not have decided as I did.
There is another matter that I may notice in the same way, and that
is in regard to those bills of exceptions, and the differences of opinion
between the court and lawyers as to what they should be made to show.
In regard to them I will ask, is it possible that the statements of these
very lawyers as to my action is the evidence upon which you are to try
me?  The Supreme Court tries the validity of my ruling by the record
I make. Should you not do the same? Nothing can be more unfair
than to take away from me in this manner my own record of my official
acts, and try me by a record made by my enemies.  My record may be
a bad one, but as it presents my official action, I wish to be tried by it
I would not be tried in the fearful manner which Mr. Knott has detailed
to you. HIe says that if I have caused the scales of justice to vary in a
single solitary cause but the estimation of a hair, I must be amenable to
this Court.  I shuddered when I heard it.  Who can stand such a trial?
What infallible Judge is there on the earth that can stand such a trial?
It is but reasonable to suppose that in some cases I have been wrong in
my ruling and judgments, and the same may be said of any Judge, not
even excepting those on the Supreme Bench. But I hope, gentlemen,
that you do not consider that the imperfection which must exist in all
human tribunals, is in my case a matter of impeachment. Imperfection,
irregularity, error-you have nothing to do with such things. You
must look for fraud and corruption; and for nothing else, for you have
no jurisdiction of anything else. If you will try me by my record, bearing that in mind, it is all I ask, gentlemnen.
You all, doubtless, recollect the substance of the testimony in regard
to this charge about may ordering Mr. Phelan to shut his mouth and sit
down, and the matter about the grand jury, and it is not, therefore, necessary for me to detail the facts now.  I pass it with the remark, that if
I did treat Mr. Phelan in the manner here charged, I was for once wrong,
though not criminally so, and no proof has been or can be adduced to
establish any corruption or criminality on my part with reference to this
matter.
In the seventh article, which is the next, I am charged with publicly
accusing Mr. Fox, a lawyer, with lying and perjury. As this is a proceeding in the nature of an action for slander, I suppose I would not be
prevented from justifying myself by giving in evidence the truth of the
alleged slanderous words. It matters not, however. I expect it to appear in the evidence before you that my treatment of Mir. Fox in the instances mentioned in these articles was about this: On one occasion,
0"66 
JUDGE JACKSON: S OPENING SPEECH.
when he was in a very extraordinary manner arguing a case, and was
severely reflecting upon the court in the course of his remarks, I stopped him, he did not heed my calling him to order; I stopped him again
and again; and finally, when it was evident that he would not pay attention to my orders, and when his client had in vain attempted to get
other lawyers to stop him, I ordered him to sit down. On another occasion, when he had proposed an amended or supplemental answer for a
client which palpably and flatly contradicted the matter previously
sworn to by his client, I then told him that if the one was true, the other
was false.  I might have used the word lie, and it would not have been
misplaced, though I do not think I did.  I could find no better explanation of his conduct than that he wished to get the young man to swear
to facts under such circumstances as would bring about a prosecution
for perjury, when he would have an opportunity of defending him for a
fee from the charge. Am I guilty of an outrageous offense because I
happened to look at the matter in this light? I suppose not.
I will now read the eighth article:
ARTICLE VIII.  That said Albert Jackson, Judge as aforesaid, forgetting the
d(ignity of his office, alnd regardless of his sacred obligation to demiean himself
faithfully and imnpartially thereiln, did, on the trial of one Green DePriest, on an
indictment for resisting an officer in the exercise of his official duties, had at a
Circuit Court begun alnd held at the town of Thomasville, within and for the
county of Oregon, on the third Monday in April, A. D. 1858, whereat he, the
said Albert Jackson, presided as Judge, conduct himself willfully partial and
corrupt, and highly unbecomilg and disgraceful to his high official position:
First. In privately advising one James V. Odeil, a lawyer, to procure said
DePriest to employ him, the said Odell, as his counsel, and to take a contingent
fee to defend him; that said DePriest could not be convicted on the indictment
pending against him for resisting the officer, because he had already been convicted of disturbing the peace of a family, which was charged to have been done
at the same time he resisted said officer.
Secoid. In officially and v oluntarily advising said James V. Odell, as counsel
for said DePriest, to plead a former conviction; which saidl advice said Albert
Jackson, presiding as Judge, gave said Odell in open court, upon the trial.
Thir(d. In partially and corruptly transcending his duties as Judge, on the
trial of said DePriest, to such an extent that the Circuit Attorney, prosecuting
for the State, abandoned said cause, and entered a "n olle parosequi."
Now, the facts in regard to this case are about these: I happened to
be acquainted with the fact, that this man DePriest was indicted twice
-for the same act. First there was an indictment for resisting an officer,
and it was true that in doing this hle made some noise, which was the
basis for another indictment for disturbing the peace of a family.  I
told this to the young man, Odell. The law in the case was plain
enough. I should not have permitted the man to be twice convicted
for the same offense, even if no attorney had appeared for him to represent the fact to the court. 1 cannot conceive that there was anything
improper in my conversation with young Odell in regard to the matter.
I simply told him what the law was, and if I added that he mnight take
a conditional fee in the case, what harm or what corruption would anybody see in that? It is my opinion, that it was a very a little business
to send up such things as that, and allege them against me as grounds
of impeachment, and I shall let it go for what it is worth.
Let us'urn now to these celebrated habeas corpus cases, as they come
next in order.,lIr. Knott was very felicitous in his great spread about
this habeas corpus act-this great bulwark of the liberties of the people. From the state of the pleadings it was necessary for him to prove
that this act was a bulwark, and the redoubtable gentlemen went at his
task with avidity. In charity I gave him that opportunity of display
a
267 
HIGH COURT OF IMPEACHMENT.
ing and exercising his rampant rhetoric, and the result has justified my
expectations. Hle embraced the opportunity, and has introduced as
backers Mir. HIallam and Mr. Blackstone.  Well, as I am still charitable,
I will not close the discussion here, but leave the point as a controvert ed one, and Mr. Knott may have still another opportunity for a big
spread. But here is a question: How have I acted about these habeas
corpus writs? In the first case I refused to grant a writ. Now, a good
and sufficient answer to the allegation that I refused this writ mali ciously is found in the very petition for the writ itself.  Miy conduct is
fully justified when you look at the petition, and remember the testi mony concerning it, including the fact that the accused was not in con finement at the time. I knew when the petition was presented that
the attorney wanted the man brought to that county, so that he could
go his bail, and thereby get possession of his property. But let the
matter stand upon the simple fact that I decided the petition insuffi
cient and refused to issue a writ. Whose business is it to decide upon
the sufficiency of petitions for writs of this kind?  When I decide that
a petition is not sufficient, and does not comply with the law, who can
overrule my decision and review my action in the premises? Certainly
this Court could not undertake to do anything of the kind. With re gard to the other cases, in them I had nothing to go by but the returns
of the officers, who had the men in custody.   When it appeared that
there was no reason for holding either of them in confinement, I dis charged them as I was bound to do. If those officers made false returns, I knew they could be indicted for it, and I did not suppose that
they would subject themselves to such a punishment. When one returned that he had the prisoner in custody by virtue of nothing more
nor less than the verbal orders of a Justice of the Peace, I discharged
him; and if there was a good reason for holding himii before that verbal.
order was mrade, it was no fault of mine if that was not set out in the
order of commitment.  At the time of the hearing of this case, I would
not have been allowed to hear outside statements as to the guilt or innocence of the accused. I had to pass upon the question as to the
legality of this confinement without any light, except that afforded by
the return.  How can you, here in this Court, have more?  And in the
other case it was the same way. The return of the officer showed that
a mittinmus had been lodged in his hands, but there was no statement of
any reason for confining the prisoner, and I simply did my duty in discharging him. In connection with these cases, I demand a trial upon
my record; and if any error is pointed out iii my action, to make it
available for the purposes of this prosecution, I demand proof of fraud
or corruption in that error.
But without dwelling upon this part of the case, I will now pass to
the eleventh article, and notice it briefly. I am here charged with calling the attention of the grand jury, at the November term of the
Stoddard Circuit Court, to a particular offense, which I hadl some reason
to believe had been committed. I am at a loss to know wAy this accusation was brought against me. It is my duty to instruct the grand
jury as to the law of particular offenses, and if I didn't do it, for such a
neglect of duty I might be arraigned.  No personal considerations, of
friendship or enmnity, could or ought to make  me neglect this duty.
And I am not done with it when my public charge is given, for if, at
any time during court, the grand jury wants instructions as to the law
of any particular case, it is my duty to give them the instrucltions, and
I shouldn't hesitate to do so, whatever might be the result to my friends
or enemies. As to what has been said about my following the grand
jury to their room and giving them  instructions, I have already expressed my views. I have nothing to retract or take back in that con
268 
JUDGE JACKSON'S OPENING SPEECH.
nection. I have honestly thought it my province to instruct the grand
jury as to what offenses were indictable, and if they were to disregard
my instructions, and there was no better method of enforcing my decisions as to the law, I would send every member of such a jury to jail
without hesitation. As to my instructions concerning indictments
against myself, it is strange, indeed, if I was not right. I make a decision in court; some bystander says it is wrong and oppressive, and goes
to the grand jury and presents me for it; now isn't it ridiculous to say
that that grand jury can then indict the Judge for his decisions? I say
again, that if a grand jury in one of my courts were to persist in an attempt to indict me under such circumstances, I would send every one
of them to jail.  They have no right to find indictments in defiance of
my instructions, and they cannot review my decisions and pass upon
their legality or illegality.
There is another case which I may mention here. When a Judge is
interested in any case, he cannot try it, of course, and he cannot make
any order concerning it. In this instance when I was indicted for
gaming jointly with three others, though the testimony plainly showed
that I did not participate in the act which was called gaming, and refused to participate in it, although I knew it was not gaming, yet as it
was an indictment against myself, so far as it related to myself, I could
make no order concerning it-neither to remove it, quash it, nor dispose
of it in any mannier.  There it must lay until it is taken up under the
provisions of the law for such cases.  Mr. Bartlett was one of the parties indicted, and was put upon his trial separately. I could not refuse
to try him, and if I did not refuse, there was no reason why I should
not declare the law of the case as I had always understood and declared
it. I stated then as I had stated to the grand jury, and on many other
occasions, that betting was the thing known to the law as gaming; that
if men should bet whisky,-even if it were not more than a thimblefull,-that would be gaming. I stated that the law was so framed that it
could not be evaded by any trick, and that whenever there was a bet
though it was nothing more than coffee-grains, it was just as much
gaming as if dollars had been staked.  Then I explained the difference
between betting and competing for a prize or other thing, whether it
was valuable or not. I told them that the State was laid off into various
agricultural districts, and that in each district premiums were virtually
given by the State to the men who would produce the best hog, or calf,
or horse, or goat. I showed that this competition for a premium or
given thing could not be gaming, and explained how a game of euchre
might be played merely in competition, or to see who should pay for a
given thing, and that on the same principle this could not be gaming.
I declared the law to be thus in the case of Mr. Bartlett. In view of
the law and the facts of the case, the attorneys would have asked that
the indictment be quashed; but I wouldn't do that, as it would be an
order affecting me as well as the other defendants. The Circuit Attorney entered a nole prosequi as to Bartlett, and I said then that I would
not make any order which would affect me as one of the defendants in
the indictment.  I will read you the law which says that a Judge shan't
make any order in his own case:
Whenever any indictment or prosecution for a criminal offense shall be pending in any court against the Judge thereof, the same shall be removed to the
Circuit Court of some county in a different circuit, upon the order, in writing, of
the Circuit Attorney prosecuting for the circuit, or upon the order of any Judge
of the Supreme Court.-Rev. Stat., p. 1183.
Under this law, there the case against me stands yet. I have not
heard of any order removing it, and I don't think any has been made.
269 
IIIGH COURT OF IMPEACHMENT.
Now, then, gentlemen, these are all the facts in regard to that case.
Is there anything wrong in all that? There is the whole matter. Was
my decision of the law, or any step I took, wrong? and if it was, is
there even the shadow of proof that the error was through corruption?
It was not wrong to try Mr. Bartlett separately.  Althoug,h there were
four persons named in the indictment, the act of each one was the act
of himself, and the parties would be separately answerable for their
respective acts.
If it were admissible, it would be easy enough for me to prove by
Mr. Bartlett that so far as I was concerned with the card-playing, I was
neither competing nor betting. Since I have been on the bench, I have
perhaps occasionally, and for amusement, played a game of euchre;
but it has been very seldom, and never for the smallest stake. And I
could show outside matters which would leave no doubt on your minds
that this thing was got up, not because any one thought I had been
guilty of gamining or any other breach of the criminal code, but wholly
and simply out of personal enmity to me. I expect to show a personal
matter in connection with this thing, and that by testimony the strong est that can be produced, which shows that this was but a part of a
combination against me, as hellish as ever was a conspiracy against any
mortal man.
[Thle respondent here commenced reading fragmentary sentences
from a letter which he held in his hand.  Mr. Knott objected to the
reading of the letter, and considerable confusion ensued, during which
Judge Jackson, MIi. Knott, and one or two Senators were all speaking
at the same time.  A report of what was said would not be intelligible,
and could not be made.  When order was restored, Judge Jackson pro ceeded as follows:]
I have had no person to defend me in this trial for reasons which I
will take the liberty of stating here.  It is because I have been consci entious about it, and not because I was not able to employ counsel who
would have defended me with much more ability than I possess.  But
I am conscious of having done nothing worthy of the reprobation of this
Court.  I had nothing to palliate or excuse or justify and I supposed
it would be a virtual admission that there was something of the kind to
be done if I were to employ counsel for my defense. I have no admissions to make.  I can't promise that if you'll let me off, I'll do differently from what I have done heretofore. I'll do exactly the same things,
in the same wvay, under the same circumstances. I admit that there
may be found, in my conduct, errors and mistakes, but I miust be convinced of the existence of those mistakes and errors before I will change
my course in a single case; and the Supreme Court is the only tribunal
competent to point out such things in my official action.
I will turn now to the twelfth article.  This is the one in which I am
charged with certain irregularities in holding a court in Butler, when it
is said the Clerk was drunk, and I discharged the grand jury, and so on.
Now, in regard to all these things I have to say, simply, that I did
as near right as I could. I expect it to appear in evidence before you
that the Clerk was there on the first day, and that every thing went on
as usual. On the morning of the second day the Clerk was not present,
and I was told that  e was sick.  It wasn't told to me by any person that
I now remember that the Clerk was drunk.  Now, without knowing
anything of the kind of my own knowledge, or having any legal information of the fact, what was my course?  The law does not empower lme
to appoint a Clerk except uponl the happening of a certain contingency.
I did not know of my own knowledge that such a contingency had happened in this case.  And even if I had appointed a Clerk, what good
would it have done? There is a provision for Clerks appointing depu
270 
JUDGE JACKSONrS OPENING SPEECH.
ties and the court approving the appointment; but there was no provision for my appointing a deputy. You may have noticed that the paper
presented here was not an appointment of a deputy by the Clerk requesting me to approve the same, but was a request that I would appoint
the deputy myself. This is not the law. The Clerk must select the
man, and appoint him, and the court can then approve or disapprove
the appointment as it sees proper. Here this man Donaldson was not
appointed, but he requested me to appoint him, or, rather, the paper
presented to me was of that purport. Now, if I had done so, they would
have given it as an instance of usurpation of authority.  But more than
this, I'll prove to you by incontestible evidence that Blount, the Clerk,
never signed that paper, and never had anything to do with it, and that
it was a forgery of an attorney, made for the purpose of getting to make
up the record in his own cases.  But I thought I had no discretion in
the matter, and I took the course which the law pointed out as my duty.
In regard to the papers, it is true that they were scattered about, and
that I took it upon myself to collect them together and preserve them.
I expect it to appear in evidence that I staid till the next day after the
grand jury -vvas discharged, took the papers and assorted themn, put thenm
in the office, instructed a person who could subsequently communicate
with the Clerk as to the manner in which I had disposed of them, locked
the door of the Clerk's office, and gave the key to this person.  For all
my steps at this court I had good reasons, which I expect you swill see
as the evidence comes before you.  I believe that my punctuality in holding courts will bear the closest scrutiny. How often it is that Judges do
not even go to the place for holding their courts at all!  Yet it is worthy
of notice that I have never missed but one court since I have been Judge,
and then it was no fault of mine.
Now for the charges with regard to my not signing bills of exceptions.
In regard to these things, I repeat that I hold it wholly incompetent
for you to examine into the validity of the acts of a Judge in such matters. In the Griffiie case, you have heard the testimony given in relation to it, and it is not necessary for me to detain you with any remarks
upon it. WAith regard to the []{oore and Eldridge case, I do not Xemember that any record has been introduced here showing that any such
case was ever tried by me, and if so, the presumption would be that
there was no such case. If there is no record evidence in this case, there
need be none in any of the others, and in this way I might be called
upon to defend my action in every case I ever tried from asper,ions of
bystanders, who know nothing of the condition of the record, andcl cannot say what I really did do. But if you could examine into such things
at all, even when you have the record, and you wanted to know what
I did and why I did it, you should call the witnesses in each case before
you, and have the pleadings before you, and have every thing done before you the same as it was done before me, and then you might decide
understandingly as to the propriety and legality of my acts.
About that instrument of writing in the Moore and Eldridge case, if
the record was here I presume that you would have no difficulty in understanding what they charge about the date, or the erasure of the
date. The facts were that there was an erasure on the date which was
matter of inspection.  Some read it with one date, and sorne with
another.  The witnesses at the trial had no need to speak of this erasure, as the instrument itself was handed around and inspected by the
jurors. To simply give a copy of it in the bill of exceptions would not
have answered, because then the fact of the existence of the erasure
could not be known. I may have been wrong about the witness Kittrell making any statement in regard to it at the timne of the trial, but
I can hardly think I was wrong in fixing the bill of exceptions so as to
271 
HIGIH COURT OF IMPEACHMENT.
show the facts passed upon by thie jury. If I did wrong in refusing to
sign that bill of exceptions, they had a remnedy, and as they did not resort to it, it is but fair to conclude that they consented to the arrangement I made. At worst it could be nothing but an irregularity, which
no testimony would prove to have originated in malice.
This, now, will bring me to the eighteenth article, and I will now
notice the case of Mirs. Buckner. In this case the record shows the
facts as they appeared upon the trial, and it is not necessary for me to
go into a defense of that record. All that about calling the lawyer to
order does not go upon the record, I know, but the objection to my
doing that is too trivial for argument. Such things a Judge is bound to
do,-every Judge does them,-and I think the proof will show that he
was only called to order when he commenced to comment upon what
was not testimony as if it were testimony, and when he was commenting upon what Mrs. Buckner said her daughter had said, which had
been declared inadmissible testimony. I think I shall be able to prove
that Mr. Davis himself said that he stopped his speech, and behaved
as he did on that occasion for effect on the jury, and that he thought it
was about the best way he could take to clear his client.
SENATOR RAINS announced that the hour of adjournment had arrived,
and asked Judge Jackson to give way for the present for a motion to
adjourn.
JUDGE JAtcSON said he would conclude his remarks during the evaning session.
The Court then adjourned.
EVENING SESSION.
TiiUaSDAY, June 16, 1859.
The Court met pursuant to adjournment.
The managers and responded attended.
JUDGE JACKSON arose and resumed his opening speech, as follows:
Gentlemen, when the Senate adjourned this morning, I was proceeding to review the eighteenth article of impeachment. This article cuts
quite a conspicuous figure in this case, and has made a considerable
handle for harangues. I have thought it better to read the article here
now:
ARTICLE XVII.  At a Circuit Court begun and held at the town f Bloomfield,
within and for the county of Stoddard, in the State of Missouri, on the third Monday in November, A. D. 1857, whereat the said Albert Jackson, by virtue of his
office of Judge of the Fifteenth Judicial Circuit, presided, and before which one
Sarah Buckller aas arraigned for trial on an indictment for murder in the first
degree, the said Albert Jackson, maliciously and corruptly intending to procure
the conviction of said Sarah Buckner, was willfully and maliciously guilty of
the most shameiful oppression, partiality, misconduct, and abuse of authority in
his official capacity.
First. In preventing William C. Grimsley, a witness introduced on the part of
the State, who had testified to a certain conversation on the part of the prisoner,
from detailing such portions of said conversation as tended to extenuate the
crime charged against her; which he, the said Jackson, did on his own motion,
without the Circuit Attorney having made any objection thereto.
272 
JUDGE JACKSON'S OPENING SPEECH.
Now, without saying whether this is true or false, I hold that this
Court cannot overrule one of my decisions as to the admissibility of
certain evidence. If such evidence as is here spoken of was offered,
and ruled out by the Court, the presumption is that it was illegal and
inadmissible. If it were right for you now to pass upon these questions
of evidence, you could not tell whether the portions of the conversation alluded to should have been admitted unless you heard them yourselves as I did, and altogether it was foolish and idle to make such a
charge against me here. But I read on:
Second. In privately advising the Circuit Attorney to withdraw the evidence
of said Grimsley, and in permitting the Circuit Attorney to withdraw said evidence from the consideration of the jury, and preventing the counsel for the
prisoner from cross-examining said witness Grimsley.
About this I simply say, that, if the testimony is gone into, itwill show
that no part of Grimsley's testimony was withdrawn by the Circuit Attorney, either upon my suggestion or anybody else's. I will read on:
Third. In allowing his partiality and solicitude for the conviction of said pris oner, Buckner, to extend so far as to induce him, the said Judge, to take the
examination of the witnesses, and the management of the cause, almost entirely
out of the hands of the attorney prosecuting for the State, although counsel for
prisoner repeatedly and earnestly protested against such gross abuse of official
authority and unprecedented oppression.
Fourth. In refusing counsel for the prisoner any of the usual courtesies due
from the bench to the bar, but attempting to oppress, harrass, and annoy said
counsel during said trial, by making use of the most rude, insolent, contemptuous
and insulting expressions towards them.
Fifth. In refusing to allow said prisoner's counsel to advert to, or speak of,
the testimony of said witness Grimsley, in their arguments to the jury, even
to correct any impression said testimony might have made upon the minds of
said jury.
Sixth. In refusing to allow counsel for the said prisoner to make use of illustrationyin their arguments in said cause, and by repeatedly and vexatiously interruptng the said counsel for said prisoner, during their arguments to the jury,
and so harshly and insultingly as to compel one of said counsel to abandon the
defense of said prisoner in the midst of his argument.
Seventh. In imposing such wanton and tyrannical restrictions upon counsel,
in arguing Maid cause for said prisoner, as to effectually defeat her constitutional
guaranty of being heard by herself or counsel, and preclude the possibility of
her having a fair trial by an impartial jury, which is the ultimate and strongest
protection of the rights and liberties of the people.
Eighth. In unjustly, corruptly, and cruelly refusing to sign a bill of exceptions, legally tendered to him by counsel for said prisoner, until said bill of exceptions was made to contain the testimony of said William C. Grimsley, notwithstanding he had refused counsel for the prisoner the privilege of cross-examining said Grimsley, and had suffered his testimony to be withdrawn, and had refused to allow counsel for prisoner to advert to, or commnient on, said testimony,
in their arguments to the jury.
Ninth. In many other corrupt and oppressive acts, indicating a degregof indecent solicitude on the part of said Jackson for the conviction of said Sarah
Buckner, unbecoming even a public prosecutor, but highly disgraceful to the
character of a Judge, as it was contrary to the spirit of our laws and subversive
of justice, and tending to bring the judiciary of the country into utter abhorrence and contempt.
If there is testimony to support all these charges, you have it before
you. How far they are sustained, and whether, if they all took place,
it is matter of impeachment, are questions which I submit for your consideration and decision. After the testimony which I shall offer on these
points, I think you will easily see that nothing improper is attributable to
me. The Circuit Attorney who conducted the case will be here, and I
depend upon his giving a true statement of the facts.
18
273 
HIGHII COURT OF IMPEACHMENT.
In reviewing the whole ease, it seems to me impossible that my official conduct can be the subject of censure here. It is not so much that
there may not be irregularities in it, but the impossibility of showing the
faintest trace of any malice. The record shows that the very things of
which complaint is made were not objected to at the time of the trial;
and if there was irregularity or illegality in the course pursued by the
prosecution, it certainly was not my peculiar province to interfere unless
there were objections or exceptions. But there seems to be a singular
feature in the case.  It seems that the attorneys wanted to comment
upon the testimony of the witness which they say was withdrawn, yet
there was no10 objection to the withdrawal of the testimony itself. The
only objection is in the ruiling about the commnenting. They don't want
it to go to the Supreme Court, however, that they objected to this ruling.
By compaling the record and the testimony together, you will see that
after the trial, when the motion for a new trial was made, nothing is said
in the reasons for the new trial about the testimony of Grimsley. You
will notice that there is nothing of the kind in the motion for a new
trial; and the first time you see anything about there being only the
testimony of one witness is in the motion in arrest of judgment.  I always looked upon it as true that the testimony of one witness alone,
uncorroborated by circumstances, was not sufficient to support a conviction for a capital offense.  It seems that the woman's attorneys, judging
by their own story, were willing that she should be convicted upon the
evidence of but one solitary witness, and that one the boy, because they
say they objected to the withdrawal of the only other witness. They
were so anxious to have the other witness in and to have a chance to
cross-examine him, that what they ought to have known would have
been much better for their client was objected to,-so they say now,but there is no objection on the record.  They profess to have been willing to let the Circuit Attorney get in illegal testimony, because they
were so anxious to get out of the same witness hearsay evidence for
them to hang a speech upon.  It does seem to me that the account given
of this trial by Mr. Phelan before you is preposterous and contradictory.
The facts are, that after the trial the case was continued two or three
weeks.  In the meantime I heard of the statement of defendant's
counsel that the testimony of Grimsley had been wholly withdrawn.
One of them, Mr. Phelan, who will talk at a round rate whether or no,
I understood reflected severely upon the course I pursued in connection
with the trial. HIearing of this, and under such circumstances as were
very well calculated to excite me somewhat, I stated that if what Mr.
Phelan said about my ruling the testimony of Grimsley out entirely
were true, that he ought to be hung instead of the woman, for he failed
to present the very fact which would have acquitted her, and then stated
the principle about a single uncorroborated witness which he afterwards
claimed great credit for suggesting.  But I will have an opportunity of
noticing this whole case more particularly hereafter, and I will now leave
it with this single observation.  It is very difficult for a Judge who
necessarily tries a great many cases to remember distinctly the minutia
of every case, and hence it is very difficult for him to defend his action
in any case, let alone a large number of cases from the aspersions of bystanders who do not speak by the record.  No Judge in the State of
Missouri can sustain himself in an impeachment proceeding if he is
called upon to defend his manner of trying cases without the record.
That is the thing you must go by, and that I must be tried by.
There is one or two small matters which I believe have escaped me.
One is this case where I am charged with giving a Mr. Ringer advice
about his county warrants.  With regard to that matter it may be or it
may not be that I had some conversation with him on the subject, but
274 
JUDGE JACKSON'S OPENING SPEECH.
I am certain that I shall be able to show you that he does not state it
correctly, and that his statements are not to be relied upon. lie states
emphatically that this occurred in Stoddard county, in the month of
October.  Now I am very able to prove that never since I have been a
Judge have I been in that county in the month of October in any year.
You may notice that he was very particular to place it after the August
election in 1857.  Now why was that?  It was because I was elected in
August of that year for six years, and they have been particular in all
the charges against me not to go beyond that election.  But the truth is
that I never since that time have been in Stoddard in October, and am
always off on the circuit at the time he has fixed.
But another matter. In regard to the appointment of a Circuit At torney, pro tern., at the term when he was himself indicted, I hold that
the happening of such a circumstance could not affect me. After I had
once made an appointment, I had no more power to revoke that ap pointment without cause, than I would have to turn the regular Circuit
Attorney out of his office.  I knew nothing about the indictment till it
was all over.  As to the quashing of the indictment, I can only leave
that to be explained by the record.  I have no recollection about ti.
This is certain, that if I had permitted the defendant to be triad u po.
a defective indictment, when a conviction would have amounted to}
nothing, that would have been a more serious charge against me thian,
this, and my enemies would have attributed such a course to my  friend~
ship for Hicks.
-Now, gentlemen, I believe I have gone, in a very desultory style, over
the principal authorities, principles, and facts upon which I expect to
rest my dclefense,-except one thing, which I will now barely mention
in conclusion.  I think that if I can show that my course as a Judge
has been acceptable to the people who elected me, and that no general
dissatisfaction exists among them, it ought to go a great ways in my
favor. Isn't it singular that there are no witnesses, no jurors, and no
parties litigant, here complaining of my  course as Judge?  To me it is
a singular and a significant fact.  It is only a few,-a very few,-who
are dissatisfied, and they are lawyers who are excited against me simply
because 1 have not been the pliable tool in their hands which they
hoped to find me.  Errors I may have committed-wrongs I may haves
done,-i)ut there is not a solitary item of proof to show any eoimruption
or malice in any official act; and that you will patiently listen to the,
proofs of these facts, is all I ask of you in this case.
The opening speech of the respondent being now concluded, the
President of the Senate inquired of Judge Jackson whether he was
ready to proceed with the testimony in his behalf, and after some little
delay, he announced that he was ready.
TESTIMONXY OF GEORGE W. CREATH.
GEORGE W. CREATI called and examined by Judge Jackson.
Q. Which county do you reside in, Mr. Creath?
A. I reside in Wayne county.
Q. Do you hold any office in that county?
A. Ye.s, sir.
Q. What is it?
A. I am Clerk of the Circuit and County Courts.
Q. WNere you present at the September term, 1858, of the Wayne
Circuit Court?  Do you recollect an application for a change of venue
in the case of Linibarger vs. Powers?
A. Yes, sir. There was a case of that style on the docket.  There
275 
HIGH COURT OF IMPEACHMENT.
was a petition presented by Mr. Fox, for a change of venue, which was
granted.
Q. Did you hear anything about an agreement as to where the case
should be sent, on the day it was presented?
A. Yes, sir. I heard him ask the Judge to send it to Madison
county.
Q. Where was it sent to?
A. To Mississippi county.
Q. Did you hear Mr. Fox say anything the next day in regard to it?
A. I heard him remark that he believed he would rather have the
case where it was, than to have it sent to Mississippi; and I understood
him to make application to have the case rescinded. The Judge said
the order had already been made, and that he had no right to make
the change to suit him.  Mr. Fox made some reply, and the Judge told
him that if he wouldn't consider it a personal matter, he would fine him
for contempt. This is what occurred, as near as I can state it. I don't
recollect precisely the conversation.
SENATOR WATKINS.  Was this the next day after the change was
awarded?
A. Yes, sir.
Q. Was it in court?
A. Yes, sir, court was in session.
[Senator Watkins asked the witness to repeat his statement, which
he did, and then Judge Jackson resumed his examination.]
Q. How long have you been Clerk of the courts in Wayne county?
A. Better than seven years.  Ever since you have been Judge, and
longer.
Q. What has been Judge Jackson's general bearing towards lawyers
and parties litigant?
[MIr. Knott objected to this question, and it was waived.]
Q. If you know how the citizens of the Fifteenth Judicial Circuit
look upon my course of conduct as Judge of the Circuit Courts, you will
please state it.
Mr. KNOTT.  May it please the Court, we have raised no issue as to
the general course of the respondent. He is on trial for particular and
specified crimes and misdemeanors. Whatever may be the answer to
this question, it cannot affect the case at bar, and hence I object to it as
immaterial and irrelevant.
JUDGE JACKSON said that his general character as a Judge had been
assailed, and he had a right to defend it by such evidence as this question would elicit. HTIe insisted upon his question.
The question for the action of the Court then being, shall the respondent be permitted to ask the question? it was decided in the negative by the following vote:
AyEs-M-essrs. Iledgpeth, and Morris-2. 
NOFs-Messrs. Brown, Byrne, Churchill, Fox, Frazier, Goodlett, Gullett, Halliburton, Harris, Horner, Hyer, Jones, McFarland, McFerran, McIlvaine, Newland, O'-Neil, Parsons. Peyton, Rains, Richardson, Robinson, Scott, Thompson,
Vernon, Watkins, Wilson, and Wood-28.
Absent-Mr. Johnson.
EExcused from voting-Messrs. Coleman and Wright.
SENATOR GOODLETT then proposed the question given below, to which
the managers objected, the objection being overruled by the following
vote:
AYvs-Messrs. Brown, Byrne, Churchill, Coleman, Fox, Goodlett, Gullett,
Harris, IIedgpeth, Hyer, McFerran, Morris, Newland, Peyton, Richardson,
Robinson, Scott, Watkins, Wilson, Wood, and Wright-21.
276 
HIGH COURT OF IMPEACHMENT.
NOES-Messrs. Frazier, Halliburton, Horner, Jones, McFarland, McIlvaine,
O'Neil, Parsons, Rains, Thompson, and Vernon-11.
Absent-Mr. Johnson.
Q. Do you know of Judge Jackson being guilty of innumerable instances of oppression, and contumelious, insolent and insulting expressions; and did or not the Judge habitually indulge in such in the
exercise of his official functions?
A. I never knew him to be guilty.
JUDGE JACKSON. You have been at the courts regularly since I have
been Judge. You will state whether I have regularly attended the
courts.
A. Yes, sir.
CROSS-EXAMINED BY MR. KNOTT.
Q. What is your understanding of contumelious conduct?
A. I don't know as I could give the exact definition.
Q. You don't know then what contumelious conduct means?
A. Well, I don't know whether I understand it or not.
Q. You can stand aside then.
JUDGE JACKSON. It is usual and right, then, to have the word explained
to the witness.
Mr. KNOTT.  Never mind; he has answered, and can stand aside.
JUDGE JAcKsoN here announced that the absent witnesses for the
State were present. The taking of the testimony for the respondent
was then suspended, and Mr. C. A. Davis, witness on the part of the State
against whom  an attachment had issued, appeared, was sworn and
charged under the rule, and on motion of SENATOR WATKINS was discharged from any further proceeding under the attachment.
TESTIMONY OF MATTHEW H. MOORE.
Mr. MA.TTHEW H. MOORE, witness on the part of the State for whom
an alias subpena had issued, also appeared, was sworn, called, and examined by Mr. Knott.
Q. Where do you reside, Mr. Moore?
A. I reside in Cape Girardeau City, Cape Girardeau county, Mo.
Q. Within which circuit?
A. The Tenth Judicial Circuit.
Q. What is your profession?
A. That of a lawyer.
Q. Have you practiced any in the Fifteenth Circuit?
A. I have attended the courts of two of the counties of that circuit.
I had been practicing in them before it was formed.
Q. Were you plaintiff in a cause entitled MI. H. Moore vs. James
Walker?
A. Yes, sir.  I brought the suit in the fall term.  There was a change
of venue in the case awarded to Scott county.
Q. Previous to the taking the change of venue do you know of
any expression of opinion as to the merits of the cause,by Judge
Jackson?
A. Of my own knowledge, I do not.
Q. Had you been informed that such a thing had occurred?
A. Yes, sir. As to the day, I can't state when that information
reached me. It was before the petition for the change of venue was
presented. I had prepared a petition, and left it with Mr. Tyrell the
night previous to leaving, not being able to stay myself to attend to the
277 
HIGH COURT OF IMPEACHMENT.
matter; and I recollect telling Mr. Tyrell that Mr. Eaker had told
me that Mr. Walker had told him  [Judge Jackson objected to the hearsay statement coming in as evidence. The witness proceeded.]
WVell, I had received information, and that information was to the
effect that the Judge had expressed an opinion as to the merits in the
cause.  It is but justice to state that I had previous to that time determined upon taking a change of venue; but it is also true that this
information came before any application was made for the change.
SEXATOa PARSONS.  What cause was assigned in the petition?
A. The cause was prejudice in the mind of the court against me.  In
talking to MIr. Tyrell, I spoke about what I had heard concerning the
Judge's expression of opinion, and perhaps said that it would be an additional ground for change of venue. But I don't recollect that anything of the kind was mentioned in the petition.  It was merely a general averment of prejudice against myself.
Q. Were you at Dunklin court, May, 1858?
A. Yes, sir, I was.
Q. Were you counsel in the case of Smith vs. Cude, pending in that
court at that time?
A. Yes, sir, I recollect the case.  There was an application made by
Cude, and a change of venue awarded.
Q. What were the reasons assigned for this application?
A. I don't recollect of anything more than prejudice.
Q. You will please go on and state what were the wishes of the parties
concerning the removal of the case; who were counsel; and what representations were made to the court in relation to the change.
A. I do not recollect all the counsel engaged in the cause.  The defendant's counsel were, I think, Mr. Davis and H1. H11. Bedford.  I am
not certain whether Kitchen and myself were in the cause with them.
Upon consultation it was determined to take a change of venue, and an
application was made, and an affidavit and petition were prepared.  I
think Dr. Horner, and perhaps Mr. Phelan, and I don't recollect who
else, were for the plaintiff. Dr. Horner lives in Hornersville, in Dunklin county.  They were consulted, and from my recollection of the conversation, I understood them as agreeing that the case should be sent
to either Bollinger or Scott county, as the most convenient to the parties and witnesses.  The court ordered it to Pemiscot.  Objection was
made, and the reason assigned, that it was the nearest point, and objection was then urged on both sides that it would be impossible to go
through the swamp; and besides this the inability of counsel on both
sides was urged on account of a conflict of courts in the two circuits.
In the upper counties the times of holding the courts did not interfere
with the courts of this circuit. The Judge answered that the order was
made, and he would not change it.
Q. What was his manner towards counsel, when they were bringing
these facts to his notice?
A. lie was what might be termed pert or short, in answer to expostulations touching the inability of counsel to follow the case to Pemiscot.
He made some short, impetuous reply, to the effect that he didn't have
their convenience to consult, and that he would not hear anything more
on the subject.
Q. Were you at Bloomfield during the trial of Sarah Buckner?
A. I was there the first week of the court when she was tried, and
was present at her trial.
Q. WVere you connected with the cause?
A. Not by employment-that is, I had no fee in the case. I was requested by one of the attorneys to take part in the case, and afterwards
278 
HIGH COURT OF IMPEACHMENT.
the defendant when in court requested me to assist in her defense. Remarking that I would not take an active part, I agreed to assist in doing
the writing, and to make suggestions, and thus to assist generally.
Q. You will please go on and state what you observed during the
progress of that trial.
A. Mly recollections of the trial are, that a son of the defendant, a
small boy, perhaps about fourteen years of age, was introduced upon
the part of the State, and in his examination, as he was manifesting a
considerable degree of hesitancy, the Judge observing it, commenced
asking questions. After that hlie asked most of the questions on the
part of the State. Afterwards, William C. Grimsley, ex-Sheriff, was examined in chief.  He gave confessions of the defendant-confessions as
to the part she had taken in causing the death of the deceased.  While
making these confessions, I understood that she had been speaking of
her own and her daughlter's connection with the transaction.  The witnes being turned over to the defense, was asked by defendlant's counsel
if in the same conversation. or during the same confessions, the defendant had stated that her daughter had done the killing. The witness
answered that she did. T hie defendant's counsel then asked for the
whole of this conversationi, to which the State obiected, and the objection was sustained.  The cross-examination was here suspended, and
the court took a recess for dinner. Very soon after dinner, the Circuit
Attorney asked leave to withdraw the witness.  Defendant's counsel
objected, and a bill of exceptions was drawn at the time and presented
to the court for signature.  The Judge refused to sign at that time.
When the case came to argument  Q. What was the purport of the question asked by defenldant's counsel, which was overruled by the court?
A. It was propounded with a view of getting out acknowledgments
of Buckner concerning a rape or seduction of the daughter, which had
either been perpetrated or attempted. David R. Conran was called to
the stand, and questioned upon this point concerning the statement of
the deceased to him.  The Circuit Attorney objected, and the objection
was sustained, and his testimony was not given.  A female witness was
called for the same purpose, and the same question propounded and
overruled as before. In the argument of the case, Charles A. Davis
alluded to this testimony, not as testimony, but as a supposed state of
facts. As well as 1 recollect, he called one of the jurors by name, and
addressed him thus: " Mr. A. B., what would you have done under such
circumstances?" At that point the Judge stopped him, telling him he
must confine himself to the testimony.  Mr. Davis stopped his argumnent.  He said that if he couldn't argue the case as he wished, he would
abandon it.  his remark was, as well as I can recollect, that he wouldn't
stand by and see a client " Jeffreyized."
Q. Did the court, when application was made to withdraw the testimony of Grimsley, tell the jury it was excluded?
A. Yes, sir.  Leave was granted by the court, and he then addressed
the jury, saying that testimony was withdrawn.  Mfr. Phelan, the other
counsel for the defense, commenced an argument. Ile perhaps referred to Nwhat they had expected to prove upon the cross-examination of
GTrimsley, and what they wished to prove by the other witnesses. lHe
was here stopped by the Judge, who told him that he knew, or ought to
know, that that testimony was not before the jury, and if he did not confine himself to the testimony, he would make him sit down.
Q. You say that during the examination of the boy, the Judge asked
most of the questions for the State. Did he in like manner conduct
the examination of Grimsley?
A. I don't recollect that the Judge put any questions to Grimsley,
279 
HIGHII COURT OF IMPEACHMENT.
but as to the boy, the Circuit Attorney asked one or two preliminary
questions, and then asked the general question, letting him go on and
relate all he knew about the matter. The boy seemed to hesitate a
good deal, and it is my impression that the Judge asked the boy the
most of the questions asked for the prosecution.
Q. Who drew up the bill of exceptions to save the points taken
during the trial?
A. I did.  I drew up several during the progress of the trial
Q. I understood you to say that there was one of the bills that he refused to sign?
A. Yes, sir. There was an exception saved to the questions propounded by the court, and also to a withdrawal of the witness, Grimsley, and that bill he refused to sign.
Q. Was Mr. Davis interrupted more than once during the progress of
his argument?
A. I don't recollect that he was interrupted more than once. He
may have been, but the only time that I now remember, was the final
interruption, when Mr. Davis quit the case.
Q. What was the Judge's manner, in this case, towards the counsel
for the defense?
A. He seemed to be in ill-humor, and treated them quite contemptuously, at least so far as I could judge, and as far as any applications
for any ruling of the case were concerned.
Q. Did you make any argument in the cause?
A. I did not, sir.
Q. At what time did you leave the court?
A. Well, sir, I couldn't say.  I think it was on Saturday or Sunday.
It was the last of that week, or first day of the next. Court had adourned over to some day in the next week, or the week following, to
give an opportunity, a chance, to prepare a bill of exceptions.
Q. How long have you practiced in Judge Jackson's circuit?
A. Since its organization in 1855, or 1856.
CROSS-EXAMINED BY JUDGE JACKSON.
Q. What time did you say you left the Circuit Court at Bloomfield?
A. I think it was on Saturday or Sunday.
Q. At the time your case against Walker was pending, did you say
you presented your application for a change of venue yourself?
A. No, sir.  I prepared the petition and gave it to Mr. Tyrell.
Q. What time did you leave there?
A. It was one day during the latter part of the week.
Q. Do you remember the day?
A. I can't say. I think it was on Thursday or Friday. I was in
court but little that week, because I had made a sale of lots in May
preceding, and I was out trying to collect most of the time.
Q. Had you given any notice of the application for a change of venue
before you left?
A. I don't think I had.  If any notice was given, it was by Mr.
Tyrell.
Q. Don't you think you had  this conversation  with  Mr.  Tyrell
about your case after you had presented your petition for a change of
venue?
A. I think not.
Q. Had there been any talk of a compromise between you and
Walker?
A. Daniel Kitchen had proposed something to me at the spring term,
but there was no proposition then pending. I had heard a good many
280 
HIGH COURT OF IMPEACHMENT.
threats had been made, and I would not make any proposition for a
compromise for that reason. Mr. Daniel Kitchen was the party that
applied to me on the subject. He had sold to Mr. Walker, and I think
had probably given him a warranty deed for the property in question.
Q. How long before this term of the court had the proposition to
compromise been made?
A. I think it was in March, when I was running off, with a surveyor,
my addition to the town of Bloomfield, that I first discovered that
Walker was on my land. That was the first I knew of it, and then I
left word that Mr. Walker need not trouble himself about the matter,
until I was more certain about how the lines run. We did not complete
the survey then, owing to a doubt whether we had found a certain corner; and I told Mr. Miller, the County Surveyor, to get the field-notes
and run off my land, and if he found that we had before begun at the
proper place, to say to Mr. Walker that he need not be uneasy about it,
because I wouldn't sell it over his head without first giving him a chance
to pay me a fair value for my property. Mr. Miller afterwards sending
me the plat, I found that the point at which we had commenced before
was the correct one, and that in running off the land, it took in Mr.
Walker's lot. In the April following, Daniel Kitchen wanted to buy
from me, and I wouldn't sell to him then because 1 had not yet filed a
plat, and I wouldn't sell any lots at any price until that had been done.
knowing the penalty prescribed by law. I told him that after I had
filed a plat, if they fixed it up that 1 would  Q. What time was that?
A. That was in April.
[The witness here proceeded to detail at some length the facts in relation to his transactions, touching his town lots, surveys, etc., but as
nothing was elicited in relation to the points of inquiry, his statements
are here omitted.]
Q. Did you make a proposition to Mr. Walker to compromise about
the land?
A. No, sir. Mr. Kitchen came to me first and last, and I treated
with him alone. I did subsequently make out a written proposition in
January last.
Q. Did you know that part of Walker's tract was included when you
purchased?
A. No, sir.
Q. Do you know about my saying anything to you concerning it?
A. I have no recollection of anything.
Q. In this change of venue at Dunklin court, do you say the parties
agreed?
A. That is my recollection. I understood that they settled upon a
proposition to take the case either to Bollinger or Scott county. There
was a general expression that either one would do. Mr. Horner was
perhaps talking something about New Madrid county.
Q. Did they generally express themselves opposed to ging to
Pemiscot?
A. Yes, sir. Several expressed themselves opposed to it. Several
said they couldn't go there on account of the swamp, and on account
of the conflict of the times of holding court.
Q. Did they make any representations concerning their opposition
before the order was made sending the case to Pemiscot?
A. As soon as you made the order there was a consultation, and a
request which I understood to emanate from all parties that the order
should be set aside.
Q. Were you one of them?
A. My recollection is that it didn't make much difference to me. I
281 
HIGHI COURT OF IMPEACHMENT.
thinlk, however, that I did speak of it, with a view to accommodating
the other parties.
Q. Were you as verbose on that occasion as you are now?
A. I may have been.  I will say that if shorter answers will suit you
better, I will give them.
Q. Short answers seem to have been excepted to heretofore in that
court. In the road cases against Farrar and Murphy, on which side
were you?
A. I was for the plaintiff in both cases.  ]My recollection is, that after
the presentation of petitions, the same order was made in both cases.
There was an objection made, but as to saying who made it, I could
not.
Q. Were the objections made before or after the orders?
A. I think they were made afterwards. They were similar to those
made in the other case, and were not complied with.
Q. In the Buckner case, Mr. Moore, you state that after a few questions by the Circuit Attorney, I took the examination of the witness upon myself?
A. Yes, sir.  After a preliminary question or two, the witness showed
a hesitancy and confusion in answering the general questions propounded
by the Circuit Attorney, and my recollection is that you asked all, or
very nearly all the questions for the prosecution after that. I recollect
that objections were made by defendant's counsel to this course on your
part.
Q. What part of Grimsley's testimony was excluded?
A. His examination in chief was completed, and the cross-examination
began, and then his testimony withdrawn entirely.
Q. Wasn't it what he was going on to say that Mrs. Buckner said her
daughter had said?
A. Miy recollection is that the witness had commenced to make a
statement, perhaps of this kind. There was an articulation uttered by
him, when the objection to this question was made, and the objection
was sustained. I believe the first question was not objected to by the
State, and that it was whether there had been, in the conversation between the witness and the defendant, any reason assigned for the commission of the acts in which she had confessed she participated.  This
being answered alfirmatively, he was then directed to go on and state
what those reasons thus assigned were. If he answered, I am not prepared to say what the answer was.  The question being objected to and
overruled, defendant's counsel objected, and excepted to the ruling of
the court, and presented a bill of exceptions, which was not signed.  At
the meeting of court after dinner, the motion was made to withdraw the
witness, and leave was granted; and then the court instructed the jury
that the testimony of this witness was not before them.
Q. Did you say that a bill of exceptions was made at this time?
A. A bill was drawn, but none presented. A preliminary exception
had been saved, and I do not know now why the bill wa'not signed.
Q. Who made the motion to withdraw the testimony of Grimsley?
A. The prosecuting attorney.
Q. When the court announced that the testimony was withdrawn,
was there any objection to that?
A. Yes, sir. Defendant's counsel objected to the withdrawal of the
witness.
Q. For what reason?
A. They wanted the benefit of his cross-examination. They were
apprised of the nature of the conversation which they wished to draw
out, and they wished to get before the jury the exculpation of the defendant, appearing from that conversation.
282 
HIGH COURT OF IMPEACHMENT.
Q. Do you know what occurred when the motions in arrest and for a
new trial were determined?
A. No, sir. That was at the adjournment.  I can speak of it only from
hearsay.
Q. Who prepared the bill of exceptions in this case, which was finally
signed?
A. The defendant's counsel.  I suppose Mr. Phelan was one.
Q. Had Mr. Kitchen anything to do with it?
A. Mr. Kitchen was not there at the trial. He had been employed to
assist in a previous trial as prosecutor.
Q. You are sure that when I stopped Mr. Davis he was commenting
on Grimsley's testimony?
A. My recollection is that he didn't refer by name to the witness, but
wvas going on making a supposed case, and commenting on the facts supposed, and in doing so he appealed to a juror, an old gentleman, wanting
to know what he would do upon being thus informed concerning the
perpetration of outrages upon a member of his family, when he was
stopped.
Q. How- long ha-e you been practicing law?
A. I obtained license from Judge Ilough, in 1S53, and went around
the circuit then.
Q. Have you follovwedl the business of an attorney ever since?
A. I have had a good many different occupations. Previous to commencing the practice in this State, I was keeping a hotel, and prior to
that I was on a farm, and sometime before that I practiced law in Kentucky.
Mcr. KNOTT.  What time do you say the testimony of the witness
Grimsley was withdrawn in this Buckner case?
A. The court had adjourned for dinner just after the refusal of permission to examine him as to the reasons assigned for the coniduct of
defendant, and immediately after dinner Mr. Woodsidles moved to withdraw the testimony. The cross-examination had proceeded no farther
than to the point where the question I have stated was objected to, and
overruled.
Q. Was it upon that account that the defendant's counsel objected to
the withdrawal of the witness?
A. It was upon the ground that the testimony elicited on the examination in chief had already gone to the jury, and could not be entirely
effaced. Defendant's counsel insisted upon having the benefit of a
cross-examination, but the court instructed the jury that the testimony
was withdrawn. There were various remarks made, and a good deal of
excitement prevailed, during which the Judge stated some reasons why
he refused to let the witness answer.
The examination of this witness was here closed.
George WA. Creath, witness on behalf of the respondent, was discharged
by consent of parties.                                          -
On motion of SENATOR IIALLIBURTON, the Court adjourned.
283 
HIGH COURT OF IMPEACHMENT.
ELEVENTH DAY.
FRIDAY, June 17, 1859.
The Court met pursuant to adjournment, and was opened by procla mation.
The managers and respondent attended.
The examination of witnesses for the State was resumed.
TESTIMONY OF CHARLES A. DAVIS.
CHARLES A. DAvIs called and examined by Mr. Knott.
Q. Where do you reside?
A. In Jackson, Cape Girardeau county, Missouri.
Q. WVhat is your profession?
A. I am a lawyer by profession.
Q. Are you engaged in the practice at this time?
A. No, sir. At present I am Register of the Land Office at Jackson.
Q. In the year 1857, were you practicing in the Fifteenth Judicial
Circuit?
A. I was.
Q. Please state whether you were at the trial of Sarah Buckner, in
the Stoddard Circuit Court, November, 1857.
A. I was. I appeared as an attorney for the defendant in that case,
at the request of Gen. Watkins, who had been employed, and was unable to attend, and asked me to appear for him.
Q. Do you remember whether a witness named Grimsley was introduced by the State in the trial of that case?
A. Yes, sir.
Q. Please state whether his testimony was withdrawn, and upon whose
motion.
A. His testimony was withdrawn upon the motion of the Circuit Attorney.
Q. Did you participate in the argument of the case?
A. Yes, sir.
Q. Please state what occurred while you were making your argument.
A. After the testimony in the case was closed, I undertook to argue
the defense. After making an exordium, I was about to rehearse the
testimony of Grimsley, when Judge Jackson stopped me. I then went
on to some other part of the order of my speech, and came back again
after a while to the point I undertook to suppose a case which involved the points in Grimsley's testimony, and the Judge stopped me again.
I asked if I could not be permitted to argue a supposed Bse; and being
told that I could not, I remarked that if I was to be Jefireyized in that
manner, I would abandon the case. I then left.
Q. Did you hear the Judge make any remark, when you quit the
case?
A. I didn't hear but one remark as I went out of the door.
CROSS-EXAMINED BY JUDGE JACKSON.
Q. Was Mr. Grimsley cross-examined any?
A. My recollection is that some questions were asked him by defendant's counsel, before dinner. I don't state it with any confidence.
There was no cross-examination of any consequence.
284 
HIGH COURT OF IMPEACHMENT.
Q. You say Mr. Grinisley's testimony was withdrawn. In what way?
A. By the Circuit Attorney.
Q. Did he propose withdrawing the testimony or the witness?
A. I don't remember. I suppose he withdrew the witness. I know
we considered him withdrawn, and when the motion was sustained by
the court, I requested Mr. Moore to draw up a bill of exceptions.
Q. Did the Judge tell the jury that the testimony was withdrawn?
A. Yes, sir, I remember that he did.
Q. When you were making your speech, how did you come to want
to comment on what was known to you to be withdrawn?
A. I suppose I was governed by the same principle on which I had
sometimes before acted. I don't mean any disrespect, but I must say
that I didn't think your decision correct, and hoped that the jury would
differ with you, as had been the case in other trials, and that I might
operate upon them for that purpose.
Q. Mr. Davis, when Grimsley went to state what Susan Seabaugh had
said to her mother, wasn't that what was excluded?
A. When Grimsley got through his relation as to the mother's confession, we got it out that the girl had killed Buckner, and you stated
that what Grimsley had stated as a confession, and the part of her confession which tended to exculpate her, was not testimony. I then drew
up a bill of exceptions, contending that we had a right to bring out the
whole of the confession. We presented that bill, and you refused to signi
it. It was drawn up about as soon as we could draw it up.
Q. When did you leave that court?
A. I left the day the trial was consummated.
Q. Was any instruction asked to exclude the testimony of Grimsley?
A. I remember no written instructions. After representing Gen. Watkins up to the time my speech was stopped, I delivered myself of the
case, and had nothing more to do with it.
Q. Do you remember what was said the first time I stopped you, when
you were making your speech?
A. I have no distinct recollection of it.
Q. Didn't you manifest a good deal of ill-will in regard to the interruption, and didn't I have to speak to you two or three times before
you heeded me?
A. I think you did. I remember your saying you had stopped me
two or three times, but I don't remember that such an occurrence took
place but twice.
Q. Do you remember saying that it was about the best way you could
conclude your speech, and that you thought that would have a better
effect than if you had gone on?
A. Yes, sir. A number of persons asked me why I didn't continue
my remarks, and I was joked about it a good deal. In reply to what
was said about the abrupt manner in which I had abandoned the case,
I said that I thought it was about the happiest termination that ould
have been given to my speech, and that I thought if anything would
produce an effect upon the jury, favorable to the defendant, your conduct throughout the trial certainly would.
Q. Did you say that you were glad that it happened just as it all did?
A. I may have said that I was glad because of the effect I thought it
would have, and that it had relieved me from the necessity of making
a speech.
Q. Don't you think you might have said you stopped on purpose?
A. I cannot recollect. I would not exaggerate by saying that as many
as thirty or forty persons spoke to me about it, and asked me why I had
abandoned the cause. I might have said in joking with them about the
matter, that I stopped on purpose.
285 
HIGH COURT OF IMPEACHMENT.
Q.  Did you think it was a joking matter?
A. Which do you mean, the case, or your conduct?
Q. The question is the whole affair.
A. No, sir, I didn't. I characterized it by a different name.
Mlr. KNOTT.  I understand you to say that in the examination of
Griminsley in the forenoon, you had just reached the cross-examination,
and after dinner the Circuit Attorney was allowed by the court to withdraw the witness?
A. Yes, sir.
SENATOa PARSONS.  WVhat was the Judge's demeanor towards the counsel of the prisoner?
A. Well, sir, in that case, I don't think I can state. I have no recollection of anything offensive up to the time I offered to file the bill of
exceptions, and I don't know then that there was anything objectionable in his demeanor. The most offensive demeanor towards the counsel was when he interrupted them in their speeches.
Mr. KNOTT. Were you in court during the delivery of the argument
of Mr Phelan?
A. No, sir. After I abandoned the case, I was not in at all when MIr.
Phelan's argument was going on.
The testimony on the part of the State here closed, and the respondent proceeded to call the witnesses for the defense.
TESTIMONY OF FRANCIS LAWSON.
FRANCIS LAwsoN called and examined by Judge Jackson.
Q. In what county do you reside?
A. I reside in Butler county.
Q. WAVere you at the Circuit Court in that county at the term when the
Clerk was reported sick?
A. No, sir.
Q. What term were you there?
A. At the last term in that county, 1858.
Q. Itave you been in court in Butler county frequently?
A. Yes, sir. I have been there about court pretty frequently.
Q. Do you know of Judge Jackson being guilty of innumerable instances of oppressive, contumelious, insolent, and insullting expressions
towards lawyers and parties litigant; and did or not the Judge habitually indulge in such in the exercise of his official functions?
A. It looks to me like I would have to answer the first part in the
negative, and the latter part in the affirmative.
Q. Perhaps you don't understand the question?
A. I mean to say that I never saw anything wrong in the Judge's
manner of conducting business.
CROSS-EXAMINED BY AMR. KNOTT.
Q. You have had no more business in court than would keep you
there half a day occasionally?
A. Sometimes I staid two or three days about court.
Q. Well, you were just going in and out incidentally,-you didn't take
a seat or remain in court all the time, did you?
A. No, sir; I was just in occasionally.
JUDGE JAcKsON.  Have you not been on juries frequently?
A. Yes, sir; I have been on a good many juries.
Mr. KNOTT.  How many juries did you ever serve on?
A. In the last six years I suppose I have served on half a dozen.
286 
HIGH COURT OF IMPEACHMENT.
TESTIMONY OF DR. J. W. SOUTHER.
28T
Dr. J. W. SOUTHER called and examined by Judge Jackson.
Q. In which county do you reside?
A. I reside in Ripley county.
Q. In what place?
A. In Doniphan, the county seat.
Q. Hlave you been about court much for the last three or four years?
A. Yes, sir. I have been about court some little.
Q. Do you know of Judge Jackson being guilty of innumerable instances of oppressive, contumelious, insolent, and insulting expressions
towards lawyers and parties litigant: and did or not the Judge habitually indulge in such in the exercise of his official functions?
A. Idonot.  He did not.
CROSS-EXAMINED BY MR. KNOTT.
Q. What is your profession?
A. I practice medicine.
Q. How often are you present in court? You are not in the habit
of taking a seat in the court room, and paying close attention to the
manner of doing business there?
A. No, sir.
Q. Then, I will ask you if you are prepared to say what Judge Jackson's manner of doing business is?
A. I only speak from what I have seen.
Q. Well, you set by and look on occasionally?
A. I am generally close about, during court week.
Q. Well, you practice medicine-and  are only in court casually, I
suppose?
A. Yes, sir.
SENATroR JoxEs here propounded to the witness the next question
given below, to which the managers objected as irrelevant, the objection
being overruled by the following vote:
AYEFS —Aessrs. Brown, Churchil l, Colena, Fox, t-Iarris, ITedgpetli, Iyer,
Jones, Morris, Xewland, Parsons, Peyton, Rains, Richardson, Robinsona, Scott,
and Wilson-17.
NoEs-Messrs. Byrne, Frazier, Goodlett, Gu]llett, Ilalliburton, Hlorler, McFarland, McFerranl, McIlvaine, O'Neil, Thompson, Vernon, Watkins, Wood,
and WNright-15.
Absent-Mr. Johnson.
Q. What has been the general demeanor of Judge Jackson towards
the members of the bar practicing in his circuit since he has been Judge
of that circuit?
A. His conduct has been good and courteous so far as I know.,
Mr. KNOTT.  Did you say that you had often been in court?
A. Yes, sir. I have been there pretty often.
Q. What was done while you were there? Do you know any case
that was tried while you were present?
A. I was in when Kinsey was tried for hog stealing,-not during the
whole of the trial, but a part of it. I was in while they were trying a
bond case; they had sued a parcel of securities on a bond; and I was in
while they tried the case of Sickles vs. McMinn.
Q. What lawyers have you seen in court?
A. I have seen Mr. Kitchen, Mr. Bedford, and Mr. Woodsides.
Q. What do you understand by contumelious conduct?
A. I suppose it means obstinate, contrary, probably. 
HIGH COURT OF IMPEACHMENT.
Q. If a man were to tell you that you had sworn a lie, or made
another man swear a lie, wouldn't you think that insulting?
A. Yes, sir. I would.
TESTIMONY OF PINCKNEY POWERS.
P1NCK.NEY POWERS called and examined by Judge Jackson.
Q. Were you at Wayne Circuit Court, September, 1858?
A. Yes, sir.
Q. Were you one of the parties in the case of Limbarger vs. Powers?
A. Yes, sir.
Q. State, if you please, what took place in court in connection with
the change of venue in that case.
A. Me and Mr. Limbarger had a suit then, and there was some talk
going on about it between the attorneys. I was sitting by Mr. Bedford.
Mr. Pipkin was sitting on the opposite end of the table. Mr. Bedford
was on my right, Mr. Pipkin on my left.  I saw Mr. Pipkin write a notice, that they would take a change of venue. I turned around and told
MIr. Bedford what he was doing.  "Oh! no," said Mr. Bedford, "I reckon
they won't do that," and when I told him that I seen Mr. Pipkin writing
the notice, he said, "Well, I will oppose its going to Fredericktown."
Mr. Pipkin handed over the notice, and asked us to acknowledge the
service of this. Mr. Bedford said, "certainly," and Mr. Pipkin went on
writing the petition.  When he was through, he beckoned to Mr. Limbarger, and he signed it, and he handed it over to the Clerk, and made
affidavit. Mr. Fox picked it up, and presented it to the Judge. All
this occurred in a few minutes.
Q. Did you agree that the case should go to any particular county?
A. No, sir.
Q. Did you want the case to go to Madison or Iron county?
A. No, sir.
Q. Who were your attorneys?
A. Mr. White and Mr. Bedford.
Q. Do you know of Mr. Bedford having agreed with other counsel to
take the case to Madison or Iron?
A. I do not.
Mr. KNOTT.  Where was the case sent to?
A. To Mississippi county.
TESTIMONY OF JOSEPH WHITE.
JOSEPH WHITE called and examined by Judge Jackson.
Q. Where do you reside?
A. In the town of Greenville, in Wayne county, in this State.
Q. Were you present at the Wayne Circuit Court, September, 1858?
A. I was, sir.
Q. Were you an attorney in the case of Limbarger vs. Powers?
A. Yes, sir. I was for Powers.
Q. State if you know what took place at the Wayne court when the
cause was pending there.
A. I know the plaintiff applied for a change of venue, and the court
ordered the case sent to Mississippi county.
Q. At the time the application was made, did you make known that
you were willing for the case to go to any particular county?
A. I did not. I was willing that the case should be tried there.
Q. How far from Greenville to Charleston, Mississippi county?
A. Somewhere between sixty and seventy miles.
288 
HIGH COURT OF IMPEACHMENT.
Q. Which would be the most convenient to go to, Iron, Madison, or
Mississippi?
A. If the swamp is up, at across Nigger Wool, the distance would be a
little more to Charleston, and upon condition that you would have to
cross the swamp, it would be more convenient to go to one of the upper
counties.
Q. Which would be the most convenient, going from Bloomfield?
A. Mississippi.
Q. Were you present at Ripley court, at the April term, 1858?
A. Yes, sir.
Q. Were you connected with the Kinsey trial?
A. Yes, sir. I was associated with the Circuit Attorney in the argu ment of the case. It was a case of larceny, and was tried twice at the
same term.
Q. Do you remember what was said about taking down the testimony
in that case,-about my not letting them have time to take it down?
A. I know there was something said about it.  Mr. Tyrell, I think,
took the evidence. I recollect that you said that what was evidence af ter the witness was through could be taken down. I recollect that Mr.
Tyrell agreed to take it down.
Q. Do you recollect any interruption of Kinsey's counsel?
A. I recollect when MIr. Fox was speaking he made a comparison.  I
believe he was comparing the court to the Spanish Inquisition, and I
recollect your asking him what he meant, and that his reply was, "if
the shoe fits you, you can wear it."
Q. What was the nature of the comparison you speak of?
A. To the best of my recollection he said he would as soon be tried by
the Spanish Inquisition, or be guillotined, as to be tried in that style. I
couldn't tell whether he meant the court or the jury, or what.  I was
mad at the time.  Mr. Fox made assertions about me and acted insultingly towards me.  I spoke very harshly to him.  I abused him just as
much as I could.
Q. Do you recollect my stopping Mr. Fox?
A. Yes, sir. It was at this time. Mir. Fox was using very improper
language, and you stopped him.
Q. Hlow long have you been practicing in the Fifteenth Judicial Circuit?
A. I have lived in the Fifteenth Circuit since 1849, and been practicing law a great portion of the time.
Q. Do you know of Judge Jackson's being guilty of innumerable instances of oppressive, contumelious, insolent, and insulting expressions
towards lawyers and parties litigant; and did or not the Judge habitually indulge in such in the exercise of his official functions?
A. I don't know of Judge Jackson being guilty of the like of that. IHe
sometimes acted, I thought, a little crudely; but he never treated the
lawyers as severely as I would have done if I had been in his plse.
CROSS-EXAMINED BY MR. KNOTT.
Q. You would consider it "crude" to tell a man in court that he lied
wouldn't you?
A. I think I would. I don't know that I ever seen the Judge do that,
however.
Q. Did you ever see the Judge act "crudely" towards Mr. Phelan and
Mr. Fox?
A. I never seen more on his part than on theirs.
Q. In this case of Kinsey, at the time the Judge stopped Mr. Fox while
19
289 
HIGH COURT OF IMPEACHMENT.
he was speaking, do you recollect whether he was saying anything that
applied to you?
A. At the first of the allusion, he said something in relation to my volunteering, and I thought he alluded to me until the court asked him
what he meant, and he replied that "if the shoe fits you, you can
wear it."
Q. When Mr. Fox spoke about the Inquisition, did he particularize or
make his comparisons so pointed that you were confident he didn't
mean you?
A. I don't think he dlid.
Q. Wasn't he speaking about your volunteering in the case, and wasn't
he playing upon your name, Joseph, by a reference to Joseph of old?
A. I think he did make use of something of that kind.
Q. When the Judge asked him to explain, didn't he say, " if you will
deduct from nay time, I will do so?"
A. I think he did.
Q. Why did you afterwards think that he alluded to the court, when
you say that at first you thought he alluded to you?
A. I thought so from the course he took, and from the rough manner
in which he replied to the court.
Q. Was any of this roughness exhibited before he was interrupted by
the court?
A. I thought it rough treatment from the word go.
Q. How far is it from Greenville to Ironton?
A. I can't tell you the exact distance. It is about forty or forty-five
miles.
Q. This swamp-Nigger Wool-isn't it generally up in the winter and
spring?
A. Yes, sir; I believe it is.
Q. Do not the courts set there in the spring and fall?
A. Yes, sir.
SExATOf GOODLETT.  Were you in court all the time when the application for a change of venue, in this case of which you have spoken,
was up?
A. I would make this concession: I am satisfied that I never heard
any agreement entered into, and I think I was present when application
was made to the court. If any statement was made to the court that
there was an agreement, I never heard it.
Mir. KNOTT.  How far is it from Greenville to Fredericktown?
A. It is forty-five or fifty miles.
Q. Whereabouts does Mr. Powers live?
A. About half way between Greenville and Fredericktown.
Q. From where he lives, which is the nearest point, Ironton or Charleston?
A. Ironton.
Q. Don't you have a good deal of business at Ironton? Isn't it the
shipping point for that part of country?
A. Yes, sir. There is some business of that kind done.
Q. How far is it from eighteen or twenty miles from Greenville, the
neighborhood where Powers lives, to the county seat of Mississippi
county?
A. I do not know the distance. It is nearer to Mississippi county at
Powers' than at Greenville. They live in the northern part of the
county, a little east of north, and Charleston, I think, is a little north of
due east, mighty near due east.
Q. Do you think you were in all the time pending the discussion of
the matter as to where the case should be sent?
A. I think I was.
290
9 
HIGH COURT OF IMPEACHMENT.
Q. Do you know which one of the attorneys wrote the petition?
A. I can't be certain which it was.
Q. Where was Mr. Bedford when it was presented? In what part of
the court house?
A. I don't recollect.
Q. Did you see where your client was setting?
A. Yes, sir. He was sitting by me. I conversed with him on the
subject.
Q. Were you not willing that the case should go to Bollinger?
A. I was disposed to let it go there without objection.
Q. Had your client any objection to the case going there?
A. None that I know of.
SENATOR IICILYAINE. How far is it from the residence of these parties
to Ironton?
A. I don't know that I can answer precisely. It is called some fortyfive or fifty miles from Greenville to Ironton, and they live about eighteen miles north of Greenville. I suppose Ironton is twenty, twenty-five,
or thirty miles from where they lived at that time. 
JUDGE JACKSON.  DO either Mr. Fox or Mr. Pipkin reside in the Fifteenth Circuit?
A. No, sir; they do not.
Q. Do not the courts at Ironton interfere with the courts in the Fifteenth Circuit?
A. I forget at what time the courts are held.
TESTIMONY OF MILES PONDER.
MILES PONDER called and examined by Judge Jackson.
Q. In which county do you reside?
A. In Ripley.
Q. Do you hold any office there?
A. Yes, sir; I am Clerk of the Circuit Court in Ripley county.
Q. State if you recollect what occurred at the trial of the State ve.
Kinsey in that court.
A. Yes, sir; I was present.
Q. Well, if you recollect any interruption in the progress of that trial,
state it if you please.
A. The only interruption I saw was between Judge Fox, defendant's
counsel, and the court. To the best of my recollection the time for the
speeches of the attorneys in this case was limited. I think that half an
hour was allowed to each attorney to speak. That is my impression, although I am not certain.  M-r. Fox spoke on that length of time, when
the Judge stopped him and informed him that his time was up.  He
turned around and made some remarks, and asked for a longer time,
and the court granted him ten minutes.  He proceeded till after the
lapse of the ten minutes, when he was informed by the court again that
his time was out. I don't remember precisely about the time, but I
think he then asked to be allowed to speak longer, and his request was
granted. He proceeded only a few minutes, and just after he proceeded,
the Judge stopped him and said, "you must address yourself to the case
if you wish to proceed." Mr. Fox thanked him, and went on until the
court again informed him that his time was up, and he contended a few
minutes about speaking longer, and the court told him to take his seat.
There may have been other things passed, but there was nothing else
that I saw.
Q. Do you recollect the circumstance that occurred about taking down
testimony?  Do you recollect any difficulty about the time for taking
down the testimony?
291 
HIIGIH COURT OF IMPEACIIMENT.
A. I have no recollection of anything of the kind.
Q. Do you recollect at the October term, 1857, anything that occurred
in the case of Lacey and Gale vs. Powers and Ponder, between Mr. Fox
and the court?
A. I remember an answer or an amended answer, or something that
required to be sworn to, any how. You told him he couldn't make that
answer.
Q. Do you recollect my taking it up in my hands?
A. I only recollect a remark that you made, that the defendant
couldn't take that affidavit.
Q. How long have you been Clerk of the court there?
A. I entered on the discharge of my duties-well, it will be six years
ago next January. I have been Clerk of the court ever since you have
been Judge.
Q. Do you know of Judge Jackson being guilty of innumerable instances of oppressive, contumelious, insolent, and insulting expressions
towards lawyers and parties litigant; and did or not the Judge habitually indulge in such in the exercise of his official functions?
A. No, sir, I don't know that I have.  If I am to confine the answer
to lawyers, I wouldn't so consider it.
Q. Have you known such conduct towards parties?
A. No, sir.
SENATOR JONES.  WVere you in court when Judge Jackson and Mr.
Fox had the difficulty about the answer?
A. I was close by.
Q. What reason did the Judge assign in this conversation why Mr.
Fox could not file that answer?
A. I could hardly say. He wanted me to qualify the defendant to
the answer, and I think he asked leave to file the answer, or he wanted
to be qualified to it, or something of that kind. I don't remember.
JUD(;E JACKSON.  Do you remember my asking him if he had written
the answer?
A. I don't remember it distinctly.
Q. Do you recollect my telling him that he lied, or that he caused his
client to lie?
A. No, sir, I don't.
Q. Do you recollect that I said anything about perjury?
A. I do not.
Q. What was the general bearing of the Judge towards lawyers practicing in his courts?
[This question was objected to by the managers, but the objection was
wai-ved after a short debate.]
A. It was generally courteous and kind, according to my view. After
parties sometimes disobeyed his ruling, he would sometimes speak very
positively and harsh to them, but not at first.
Q. Do you mean parties to suits or attorneys? Do you know of any
instance in which I have ever spoken harshly to the parties themselves?
A. Well, to the parties themselves I think you was always kind and
courteous, and you was kind and courteous to the lawyers generally.
SENA-TOI Fox. Did you ever know the Judge to speak harshly to an
attorney without first receiving some harsh treatment from that
attorney?
A. I don't think I ever did.
Q. Were you by all the time during the disturbance between  Mr.
Fox and the Judge?
A. Yes, sir. My attention was called to the circumstance, and I was
there to swear the defendant to the answer. The court told him the
292 
HIGH  COURT  OF IMPEACIIMENT.                        293
defendant couldn't make that answer, for some reason. I couldn't say
what it was.
Mr. KNOTT.   In this conversation, you say that Mr.  Fox proposed  to
have the defendant himself sworn?
A. Yes, sir.
The examination of witnesses here ended for the forenoon.
J. W. Souther, Francis Lawson, Dr. Russell, and Pinckney Powers,
witnesses, were discharged by consent of parties.
Mr. KNOTrT, on behalf of the managers, called the attention of the
Court to the law regulating costs in cases of impeachment, and suggested
the propriety of some action on the subject.
SENATOR GOODLETT then, to test the sense of the Senate, offered the
following resolution:
-Resolve,d, That the Chairman of the Committee on Accounts be instructed not
to issue certificates to defendant's witnesses until the final decision of this cause,
when, if the defendant is acquitted of the charges against him, said certificates
shall issue according to law.
To this resolution, SENATOR WILSON offered the following amendment,
by way of substitute:
_?esolved, That the Committee on Accounts be instructed to audit and allow
the witnesses summoned by the State and respondent in the impeachment case
now peInding, for mileage and attendance ill said cause, as said witnesses may be
discharged by the Court.
This amendment was agreed to by the following vote:
AYEs-Messrs. Byrne, Churchill, Coleman, Gullett, Harris, Iedgpeth, Hlorner,
IHyer, Jones, lMcFerran, Mcllvaine, M3orris, Newland, O'Neil, Peyton, Rains,
Robinson, Scott, Vernon, Watkins, Wilson, and Wood-22.
NoEs5-Jessrs. Brown, Fox, Frazier, Goodlett, Ilalliburton, McFarland, Parsons, Richardson, Thompson, and Wright-10.
Absent —Mr. Johnson.
The question then being on  the adoption of the substitute,  it was
adopted by the following vote:
AYEs-Messrs. Byrne, Churchll, Coleman, Gullett, Harris, ITedgpeth, Ilorner,
Hyer, Jones, McFerran, McIlvaine, Morris, Newland, O'Neil, Peyton, Rains,
Robinson, Scott, Vernon, Watkins, Wilson, and Wood-22.
-NoES-SIessrs. Brown, Fox, Frazier, Goodlett, Ilalliburton, McFarland, Parsons, Richardson, Thompson, and Wright-10.
Abse[t-MIr. Johnson.
On motion of SENATOR HORNER, the Court adjourned. 
HIGH COURT OF IMPEACHMENT.
EVENING SESSION.
FRIDAY, June 17, 1859.
The Court met pursuant to adjournment.
The managers and respondent attended.
The examination of witnesses for the defense was resumed.
FRANCIS LAwsoN. recalled and examined by Judge Jackson.
Q. Are you acquainted with the handwriting of Jacob C. Blount 9?
A. Yes, sir. I have frequently seen him write his name.
Q. From your knowledge of his handwriting, would you say that was
his signature? (showing witness a paper.)
A. I don't think it is his handwriting.
CROSS-EXAMINED BY MR. KNOTT.
Q. What is the material difference between that signature and Mr.
Blount's usual manner of writing his name?
A. There is a material difference in the way he forms his J.
Q. Did you ever see Mr. Blount write when he was so drunk he
couldn't stand up?
A. No, sir, I never did.
MILES PONDER recalled and examined by Judge Jackson.
Q. Do you recollect the case of Moore vs. Eldridge, the administrator
of Parker, in the Ripley Circuit Court?
A. Yes, sir, I recollect the case.
Q. State what you know of a paper before the jury, and any difficulty
that may have occurred about it.
A. In the trial of that case, the defendant, Moore, wished-well
there had been a firm of Moore and Parker, and Parker was dead and
Eldridge was his administrator. When the suit was pending he wished
to introduce the article of agreement for carrying on the business as
partners. The court refused to allow that paper to be introduced, because,-well, I couldn't tell what was the reason, but I think it couldn't
be ascertained what the date of the paper was. The court refused to
allow that paper as evidence, and MIoore wanted to use it as evidence.
Q. How did it affect the suit?
A. Well, I don't know exactly how it affected the suit.
Q. Hadn't the suit been spoken of pretty generally?
A. Yes, sir. It was talked about a good deal. The suit was about a
note, and the articles were important to show whether the note was
given in accordance with the articles. That is the reason wl the paper
was material in this suit, and it is necessary to have the articles in to
show something about these  Mr. KN-OTT objected to the witness giving an opinion as to the effect
of the instrument as evidence in the case.
Q. What was the nature of the suit?
A. The suit was on a note. Moore had refused to pay the note, because he said it was given through a mistake. He wanted to introduce
the articles to show that the note was given to Parker through a mistake.
Q. Do you recollect in making up a bill of exceptions any difficulty
about this article. That is what we want now.
A. They moved an arrest of judgment from the fact they were not
allowed to introduce their instrument. The only way I know
294 
HIGH COURT OF IMPEACHMENT.
Mr. K-OTT.  If you were present when the bill of exceptions was
presented, say so, and tell what occurred, and if you were not present
you need not make any statement about it.
A. I don't remember what passed between them when the bill of
exceptions was made up. They excepted because they hadn't been
allowed to introduce this article.
JUDGE JACKSON. Was this instrument to go into the bill of exceptions?
A. I don't remember.
Q. Do you recollect any difficulty about the instrument in preparing
the bill of exceptions?
A. I don't remember any difficulty. I don't recollect whether he
wanted to have it in the bill of exceptions, or not.  It strikes me that
it was not. The date couldn't be made out from being defaced or
erased. It seemed to have been altered. I couldn't make out the date.
TESTIMONY OF CHARLES F. HENDERSON.
CHARLES F. TIENDERSON called and examined by Judge Jackson.
Q. In which county do you reside?
A. In Butler county.
Q. Were you there at the Circuit Court, November term, A. D. 1857,
when Blount was so he couldn't be in court?
A. Yes, sir. I was living there at the time.
Q. Do you know anything about a suit pending against you then by
Ewing & Co.?
A. I think there was a suit commenced. However, I don't recollect
what was done with it, or what could be done with it then. I don't
know much about the suit, or what become of it.
Q. Had process in the case of Ewing & Co. vs. Henderson been served
in time for any steps to be taken in the case at that term of the court?
To this question the managers objected on the ground that it could
only elicit the opinion of the witness upon a matter of law.
JUDGE JACKSON contended that the evidence of Mr. Phelan had made
it proper to ask the question.
The question for the action of the Court being, shall the respondent
be permitted to ask the question? it was decided in the negative by
the following vote:
AYEs-Messrs. Goodlett, Gullett, Harris, Hedgpeth, Morris, Parsons, Peyton,
Robinson, and Wood-9.
NOEs-Messrs. Brown, Byrne, Churchill, Coleman, Fox, Frazier, Halliburton,
Horner, Hyer, McFarland, McFerran, McIlvaine, Newland, O'Neil, RichardFon, Thompson, Vernon, and Wright-18.
Q. How long have you been living in Butler county?
A. About nine years, I think.
Q. Do you live in the town of Poplar Bluff? 
A. I lived there until last year.
Q. Do you know of Judge Jackson being guilty of innumerable instances of oppressive, contumelious, insolent, and insulting expressions
towards lawyers and parties litigant; and did or not the Judge habitually indulge in such in the exercise of his official functions?
A. Not to my knowledge.  I have been but very little in court, though
I have been living there.
Q. What has been the general demeanor of Judge Jackson towards
lawyers practicing in his courts, and towards witnesses and parties, so
far as you know?
A. I can't say I have seen anything amiss in him. So far as I know
there has been nothing amiss.
295 
HIIGII COURT OF IMPEACHMENT.
Mr. KNOTT.  I understand you to say you have been very little in
court?
A. Yes, sir. Very little.
MIr. KNOTT.  You can stand aside then.
TESTIMONY OF ALEXANDER SLOAN.
ALEXANDER SLOAN called and examined by Judge Jackson.
Q. In which county do you live?
A. In Wayne county.
Q. How long have you been living there?
A. Twenty-six years.
Q. ilave you been in court during the last three or four years much?
A. Yes, sir.  I think I have attended all the courts two or three days
each, for the last four or five years.
Q. Do you know of Judge Jackson being guilty of innumerable instances of oppressive, contumelious, insolent, and insulting expressions
towards lawyers and parties litigant; and did or not the Judge habitually indulge in such in the exercise of his official functions?
A.'No.  I never recollect seeing anything of that kind.
Q. What has been the general demeanor of Judge Jackson towards
lawyers practicing in his courts, and towards witnesses and parties, so far
as you know?
A. It has been respectful; as much so as usual. I never saw any thing
wrong.
CROSS-EXAMINED BY MR. KNOTT.
Q. You say you have been at court one or two days each term. You
mean, I suppose, that you have been there incidentally, going in and out,
as your business calls you?
A. Yes, sir.
JUDGE JAcKSON.  You have been on juries frequently, haven't you?
A. Yes, sir. Both grand and petit juries.
Mr. KNOTT.  WVhen you have been on the grand jury, you have been
pretty much confined to the jury rooomn while court was in session,
haven't you?
A. Yes, sir.
Q. HIow often have you been on the grand jury for the last three or
four years?
A. Once, I believe.
Q. How many times have you been a petit juror.
A. I don't recollect but one or two times.
TESTIMONY OF JAMIES A. ATKINS.
JAMES A. ATK:INS called and examined by Judge Jackson.
Q. In which county do you reside?
A. In Wayne county.
Q. How long have you been living there?
A. Thirty years.
Q. Have you been about the Circuit Court any for the last four years?
Have you been a juror occasionally?
A. Yes, sir.
Q. I)o you know of Judge Jackson being guilty of innumerable instances of oppressive, contumelious, insolent, and insulting expressions
towards lawyers and parties litigant; and did or not the Judge habitually indulge in such in the exercise of his official functions?
296 
HIGH COURT OF IMPEACHMENT.
A. I have never known anything of the kind.
Q. What has been the general demeanor of Judge Jackson towards
lawyers practicing in his courts, and towards witnesses and parties, so far
as you know?
A. I don't know much about it. I haven't heard any but a few complain.
CROSS-EXAMNINED BY MR. KNOTT.
Q. You say you have been at court more or less for the last three or
four years. You mean that you were there incidentally, passing in and
out, and that you did not set there all the time noticing the manner of
doing business?
A. Yes, sir. That is what I mean.
Q. What is your business?
A. That of a farmer.
TESTIMONY OF LEMUEL KITTRELL.
LEMUEL KITTRELL called and examined by Judge Jackson.
Q. Were you present at the Circuit Court in Ripley county when the
case of the State vs. Kinsey was tried?
A. Yes, sir.
Q. If you noticed anything peculiar between the court and Mr. Fox,
state what it was.
A. M~r. Fox was employed by MIr. Kinsey.  The lawyers in this case
were limited as to how long they should speak. iMr. Fox went on with
his speech, and the court stopped him, and reminded him that his time
was near out.  Fir. Fox thanked him, and went on.  IHe run over his
time fifteen minutes. The court stopped him again, and he asked for
more time, and the court still gave him more time, and when that was
out, says he, " Mr. Fox, set down."  Mr. Fox did set down.  He appeared to be speaking in a peculiar way.
iar. KNOTT.  Never mind stating anything about that.  Mr. Fox's
peculiarities are not under investigation.
A. WVell, when I came in he was speaking in a powerful way, and if
you must know, I thought it was a little too much whisky. He wasn't
speaking to the pint or subject at all, according to my judgment.
Mr. KNOTT.  We don't want your judgment.
JIJUDGE JACKSON. How long have you been living in Doniphan?
A. I have been living at Doniphan ever since it was born, as the saying is.
Q. Do you know of Judge Jackson being guilty of innumerable instances of oppressive, contumelious, insolent, and insulting expressions
towards lawyers and parties litigant; and does or not the Judge habitually indulge in such in the exercise of his official functions? 
A. No, sir.  I don't.
Q. What has been the general demeanor of Judge Jackson towards
lawyers practicing in his courts, and towards witnesses and parties, as
far as you know?
A. So far as I know, it has been all right, except that some times the
lawyers got so troublesome that he couldn't do much with them. I
thought his general course towards the lawyers was tolerable loose.
SENATOR JONES.  What is the general character of Judge Jackson in
the Fifteenth Judicial Circuit for honesty and integrity in the discharge
of his official duties?
[Mr. Knott objected to this question, and after discussion it was withdrawn.]
297 
HIGH COURT OF IMPEACHMENT.
TESTIMONY OF DABNEY S. COOPER.
DABNEY S. COOPER called and examined by Judge Jackson.
Q. In which county do you live?
A. I live in Stoddard county.
Q. Were you on the jury in the case of the State vs. Sarah Buckner?
A. Yes, sir.
Q. Do you recollect the testimony of Grimsley in that case?
A. No, sir. I can't recollect.
Q. Do you recollect whether it was withdrawn?
A. I cannot recollect whether it was withdrawn or not.
Q. Do you recollect any instructions that were given to the jury in
relation to that matter?
A. Not now. It has been too long ago.
Q. Do you recollect any difficulty taking place between the court and
Charles Davis?
A. I recollect of his setting down, and leaving the case.
Q. Do you know what made him set down?
A. No, sir; I don't.
TESTIMONY OF JAMES DENNIS.
JAMES DENNIS called and examined by Judge Jackson.
Q. In which county do you reside, Mr. Dennis?
A. I live in Butler county, Missouri.
Q. State if you were at the court when Mr. Blount didn't work.
A. Yes, sir; I was there. It was the November term, 1857.
Q. How long did court hold at that time?
A. I think it held one day, all day Monday, and adjourned Tuesday,
about 12 o'clock.
Q. Was it Tuesday or Wednesday?
A. I am not certain whether it was Tuesday or Wednesday.
Q. Do you recollect what was the matter with the Clerk?
A. On Monday night Blount was either drunk or sick.  I am not certain whether it was Monday or Tuesday night. I know no Clerk was
appointed. I think it was about 12 o'clock the court adjourned.
Q. Do you recollect any attempt to go on with the business?
A. Yes, sir. You said that we could take judgments on plain notes
of hand if we wished. You said you thought that could be done.
Q. What became of the papers belonging to the cases then in court?
A. You took them into the Clerk's office, and separated the papers
belonging to the criminal cases from the papers belonging to the civil
cases, and then put them away. You took me into the Clerk's office,
and showed me where you put them, and then you locked the door,
gave me the key, and I went down and gave it to Blount  Q. Were you present in court when the case of Gibson vs. Dunn was
called?
A. Yes, sir; I was.
Q. State, if you please, if any thing unusual occurred between the
court and Mr. Phelan, while we were trying that case.
A. I cannot recollect what occurred then. I didn't observe anything
unusual. At another term of the court,lI witnessed a difficulty between
the Judge and Mr. Phelan.
Q. Well, go on and state what was said and done.
[The witness was proceeding to narrate some circumstances which
had no connection with the case in hand, when he was stopped by Mr.
Knott, and his statements on this point excluded.]
298 
HIIIGH COURT OF IMPEACHMENT.
Q. Mr. Dennis, were you one of the attorneys in the Sarah Buckner
case?
A. I was. I helped to take down the evidence in the case. I wasn't
employed, but was only assisting Mr. Phelan. I don't recollect much
about the case. I had the chills then, and had taken quinine that day.
I didn'b charge my mind with what occurred. I made the opening
speech in the case.
Q  Were you present when MIr. Davis made his speech?
A. Yes, sir. He got to commenting on some evidence, and the Judge
called him to order, and told him "that evidence is not in the case."
Mr. Davis then said, "if you won't allow me to draw figures and comparisons, I shall abandon the case." Then he stopped.
Q. How long have you lived in the Fifteenth Circuit?
A. Over three years.
Q. Have you attended all the courts in the circuit?
A. Yes, sir. I have been in all the nine counties.
Q. Do you know of Judge Jackson being guilty of innumerable instances of oppressive, contumelious, insolent, and insulting expressions
towards lawyers and parties litigant  and does or not the Judge habitually indulge in such in the exercise of his official functions?
A. No, sir. I can't say that I do.
Q. What has been the general demeanor of Judge Jackson towards
lawyers practicing in his courts, and towards witnesses and parties, as
far as you know?
A. As far as I have seen, you have treated the bar with respect and
courtesy. I can speak for myself, and I haven't seen you mistreat any
body else.
Q. Did you ever see Jacob Blount write his name? Are you acquainted
with his handwriting?
A. Yes, sir; I am.
Q. From your knowledge of his handwriting would you say that was
his signature? (showing him the paper.)
A. I don't think it looks like his signature. His J's always come below the line.
Mr. KNOTT.  Did you ever see him write his name when he was so
drunk that he had to be held up to do it?
A. No, I never saw him do that, though I have seen him write when
he was pretty tight.
Mr. KNOTT.  Well, then, you may stand aside.
TESTIMONY OF ALEXANDER WARD.
ALEXANDER WARD called and examined by Judge Jackson.
Q. In which county do you reside, Mr. Ward?
A. I live in Wayne county.
Q. How long have you lived there? 
A. About fourteen years, last fall, since I came to Missouri.
Q. Are you frequently at Circuit Courts?
A. Yes, sir; I am.
Q. Do you know of Judge Jackson being guilty of innumerable instances of oppressive, contumelious, insolent, and insulting expressions
towards lawyers and parties litigant; and does or not the Judge habitually indulge in such in the exercise of his official functions?
A. I never saw anything of it, at our court. I always have seen you
courteous.
Mr. KNOTT. What is your business?
A. Farming.
Q. You are merely incidentally at court, I suppose?
299
0 
tIIGH COURT OF IMPEACHMENT.
A. That is all, sir.
JUDGE JACKSON. You have served on juries?
A. Yes, sir.
TESTIMONY OF A. LOWE.
Mr. A. LOWE called and examined by Judge Jackson.
Q. In which county do you live?
A. I reside in Ripley county.
Q. What is your occupation?
A. I have been following surveying and writing in the Clerk's office
some four years.
Q. Do you recollect anything concerning the case of the State vs.
Kinsey?
A. I was not in court at the trial of that case.
Q. Do you recollect anything about the Judge saying anything about
some one being guilty of perjury or subornation of perjury?
A. I do not.
Q. Do you recollect the case of Lacey and Gale vs. Powers and
Ponder?
A. Yes, sir.
Q. Do you recollect anything said to Mr. Fox during the pendency
of that case?
A. No, sir.
Q. Do you recollect anything in the case of Moore s. Eldridge?
A. I recollect an instrument of writing offered by Moore, and the
court overruled its being evidence. iHe. didn't permit it to be introduced as testimony.
Q. Do you recollect whether that instrument was used in another
case?
A. No, sir; this is the case that they offered to introduce the instrument in.
Q. Was there any other case except this one between Eldridge and
Moore in which this paper came up?
A. I think this case that we have spoken of was an appeal from the
County Court. In the trial in the County Court, I suppose they had
the paper.
Q. Well, was it in this case of Moore vs. Eldridge that this question
about the erasure came up?
A. Yes, sir. I think so.
Q. Have you generally been in the Circuit Court for the last three or
four years?
A. I have been in every court more or less for that time.
Q. Do you know of Judge Jackson being guilty of innumerable instances of oppressive, contumelious, insolent, and insulting expressions
towards lawyers and parties litigant; and does or not theJudge habitually indulge in suchin the exercise of his official functions?
A. I do not. sir.
Q. What has been the general demeanor of Judge Jackson towards
lawyers practicing in his courts, and towards witnesses and parties, so
far as you know?
A. So far as I know, it has always been courteous.
TESTIMONY OF JAMES DOWDY.
JAMES DowDY called and examined by Judge Jackson.
Q. In which county do you live?
A. I live in Stoddard county when at home, in this State.
300 
HIGHI COURT OF IMPEACHMENT.
Q. What do you do there?
A. I ain't doing anything there just now. I have been acting Sheriff
of that county some three years. It will be three years next August
since I got the appointment.
Q. Were you present at the time when there were some proceedings
in the Stoddard Circuit Court about a mandamus against Judge Eaker?
A. Yes, sir. I saw the writ.
Q. Did you offer to deliver the original writ to Mr. Eaker?
A. Yes, sir, I did, and when I carried it to him, he said he was too
old for King Wasson. I told him the service of my deputy wasn't
legal, and he would have to answer, and there was the original writ and
he could answer on that; but he turned off, telling me what I have said.
Q. Who is Wasson?
A. Mr. Wasson lives down in Stoddard county and professes to be a
lawyer.
Q. What became of the writ?
A. It was returned into the court. When the matter came up into
court my understanding was that it was decided that the Deputy Sheriff
hadn't served the writ right, and it was handed to me, and I went to
him and told him what the decision was about the way of serving the
writ, but he wouldn't have anything to do with it. I turned round and
went back, and went in and handed the writ to the court, and I stated
that Mr. Eaker wouldn't have anything to do with the writ.
Q. Do you know what my reply was when you told me Mr. Eaker
had refused to have anything to do with the original writ?
A. No, sir. I don't recollect. I don't recollect whether you made
any reply.
Q. Do you know when he did answer?
A. I think it was that evening.
Q. Didn't he ask until next morning to mnake his return?
A. I don't know. It is likely he might have asked that, though I
don't recollect anything about it.
Q. What has been the demeanor of Judge Jackson towards members
of the bar practicing in his courts?
A. I alvays thought he allowed them to do pretty much as they
pleased.
Q. Do you know of Judge Jackson being guilty of innumerable instances of oppressive, contumelious, insolent, and insulting expressions
towards lawyers and parties litigant; and does or not the Judge habitually indulge in such in the exercise of his official functions?
A. No, sir; I don't.
CROSS-EXAMINED BY MR. KNOTT.
Q. Where was Judge Eaker when the difficulty came up in court
about the service of the writ of mandamus?
A. I don't recollect. 
Q. Was it the return day of the writ when you say you took the original
to Judge Eaker?
A. I took the writ to him the same day they had the difficulty about
service. Afterwards he wrote his return.
Q. Where was Judge Eaker when you took the writ to him?  Was
he in or out of the court house?
A. He had gone out; and when I had spoke to him, he turned off
and went into Miller's store.
SENATOR PARSONS.  Was this offer of the original before or after he
was attached?
A. It was before.
301 
HIGH COURT OF IMPEACHMENT.
Q. How long?
A. Some little time. It was long enough for me to go back into court.
I think the attachment was issued after I went back and made a report
of what he wouldn't do.
Mr. IHARDIN.  Did you make any statement under oath, or any affidavit to these facts?
A. No, sir. I just made that statement.
The examination of witnesses was here suspended.
The following named witnesses were discharged by consent of parties:
For Respoc?deent-Charles Hienderson, Dabney S. Cooper, Alexander
Ward, Lemuel Kittrell, Mtiles Ponder, Alexander Sloan, A. Lowe, James,
Dowdy, and James A. Atkins.
For tle Stae-Washington Carlisle.
On motion of SENATOR NEWLAND, the Court adjourned.
TWELFTH DAY.
SATURDAY, June  18, 1859.
The Court met pursuant to adjournment, and was opened by procla —
mation.
The managers and respondent attended.
The examination of witnesses for the defense was resumed.
TESTIMONY OF JAMES A. WALKEP.
JAMES A. WALKEa called and examined by Judge Jackson.
Q. In which county do you live?
A. In the county of Dunklin.
Q. Were you an attorney in the case of Smith V3. Cude?
A. Yes, sir, I was.
Q. Were you present when an application for a change of venue in
that case was made?
A. I was not in the court house at the time the application was made.
Q. Did you consent that the case should be sent to either Cape Girardeau, Scott, or Bollinger county?
A. I don't think I was consulted. It was my understanding that Dr.
Horner arranged that matter.
Q. Hlow do the citizens of Dunklin county generally go to Pemiscot
county? 
A. Generally by water. One can go by keel-boat, canoe, pirogue, to
Portage, and there get a horse for the balance of the distance. In a
dry time you can go on horseback. When the water is very high you
can't go at all. We had no Circuit Court in Pemiscot this time, on
account of the water. The water was under the court house I understood.
Q. How far is it from the county seat of Dunklin to the county seat
of Pemiscot?
A. In a dry time it is fifty miles.  We have to go by water seventyfive or eighty miles. The way you go from Pemiscot to Dunklin depends
entirely upon the stage of the water.
302 
IHIIGH COURT OF IMPEACHMENT.
Q. Don't the people living in that country go through from county to
county at all seasons of the year?
A. We go there at any time, wet or dry.
Q. Is it usual to go around by way of Cape Girardeau?
A. No, sir. We don't usually go way around by way of Cape Girardeau. We hardly ever go that way.
Q. Where do the parties in this case of Smith vs Cude live?
A. The plaintiff lives in Dyer county, Tennessee. The defendant in
Dunklin county, in this State. The witnesses, I believe, live in Dunklin, also.
Q. Which is the most convenient county to these parties, Cape Girardeau, Scott. Pemiscot, or Bollinger?
A. Pemiscot, I should think, was the most convenient. It might
happen that either of the others would be more convenient.
Q. What are the facilities for going across the swamp?
A. There are plenty of canoes, keel-boats, and pirogues.
Q. Are not the goods to supply the stores of that county taken across
there?
A. Yes, sir. The goods are most all landed at Point Pleasant, hauled
to Portage, and then shipped in keels. There are men who hold themselves in readiness to take travelers across the swamp.  They usually
charge about five (lollars. If there is more than one it costs less.
Q. What is your profession?
A. I practice law some.
Q. Do you know of Judge Jackson being guilty of innumerable instances of oppressive, contumelious, insolent, and insulting expressions
towards lawyers and parties litigant; and did or not the Judge habitually indulge in such in the exercise of his official functions?
A. I must answer that question in the negative.  I have known hard
feelings to exist between members of the bar and Judge Jackson, and I
have at times heard him use insulting language to them. Sometimes I
thought that they were to blame, and sometimes I thought that he was
wrong.
Q. WVell, what has been the general demeanor of Judge Jackson towards lawyers practicing in his courts, and towards witnesses and
parties?
A. Sometimes it has been very courteous and affable, and at other
times not so much so.
Q. Well, let us have the general demeanor.
A. Well, for the last three or four courts there has always been something wrong between the court and the bar. I can't say that the court
has been to blame for it, however.  I was never involved in anything of
the kind myself, and I never looked into the matters of others.
SENATOR WATKINS.  DO you practice throughout the circuit?
A. No, sir. My practice is principally confined to Dunklin county.
CROSS-EXAMINED BY MR. KNOTT.
Q. How long does it take to go across this swamp that you speak of
when you go by water?
A. Generally a day and a half or two days. It is about fifteen miles
from Hornersville to Portage. There you have to hire a horse in going
on to the county seat of Pemiscot.
Q. What did you say the expense would be in going by this route?
A. It would be five dollars and something more for a horse.
Q. Is it possible to travel in this way at all seasons of the year?
A. No, sir. When the water is very high you would have to take
some other route.
130 3 
HIGIH COURT OF IMPEACHMENT.
Q. Can you go horseback at any season of the year?
A. It is very difficult. It sometimes happens that it could be done,
but usually it would be very difficult.
Q. How would it do to go in a buggy?
A. It could hardly be done.
Q. Do you know whether the courts in Pemiscot have been held regularly of late?
A. I have understood that they have had no court there for some time
on account of the high water.
Q. Did you say that Mr. Horner was your associate counsel in this
Smith vs. Cude case?
A. Yes, sir.
JUDGE JACKSON. Hiow long does it take to go from Ilornersville to
Levee?
A. It is one hundred and fifteen or one hundred and twenty miles,
and takes five, six, or seven days, owing to the conveyance used.
SENATOa WATKINS. HOW far is it from Port,age to Gayoso?
A. About fifteen miles. That is my impression, at least. I have never
been from Portage to Gayoso.
TESTIMONY OF WILLIAM H. HORNER.
WILLIAM HII. HORxNER called and examined by Judge Jackson.
Q. In which county do you reside, M1r. Horner?
A. In Dunklin county.
Q. Were you one of the attorneys in the case of Smith vs. Cude, in the
Dunklin Circuit Court?
A. Yes, sir. I was on the side of the plaintiff, Mr. Smith.
Q. Were you in court when a change of venue was awarded in this
case?
A. I wasn't present when the application was made. When I was
called in, IMr. Kitchen came to me and suggested Bollinger county as
the most convenient.  I think I suggested New Madrid county.  We
disagreed, he contending for one county, and I for the other.  The Judge
then stated that he would send it to Pemiscot county.
Q. Hlow did that suit the parties?
A. Well, the county seat of Pemiscot is about half way between the
two parties, plaintiff and defendant.  Each would have to travel thirty
or thirty-five miles,-about the same distance.
Q. Where do the witnesses reside?
A. I think all the witnesses are in Dunklin county, with the exception
of a few, perhaps, in Dyer county, Tennessee, where the plaintiff resides.
SE\NATOR JONES.  You say Mr. Smith was plaintiff?  Did his attorneys
take the change of venue?
A. No, s:r; it was the defendant.
Q. When persons living in that county wish to go from Kennett to
Gayoso, is it the usual way to cross at Hornersville? 
A. Yes, sir.
Q. How far is it?
A. In the neighborhood of thirty or forty miles.
Q. In what counties have you been at court, Mr. Horner?
A. I have attended the courts in Reynolds, Shannon, Oregon, Stoddard, and Dunklin counties.
Q. Do you know of Judge Jackson being guilty of innumerable instances of oppressive, contumelious, insolent and insulting expressions
towards lawyers and parties litigant; and did or not the Judge habitually indulge in such in the exercise of his official functions?
A. Never, to my knowledge.
304 
HIGH COURT OF IMPEACHMENT.
Q. What has been the general demeanor of Judge Jackson towards
lawyers practicing in his courts, and towards witnesses and parties, so
far as you know?
A. So far as my knowledge extends it has been proper and right. I
have, however, frequently seen him roused somewhat, and have known
of him calling them to order and lecturing of them some.
CROSS-EXAMINED BY MR. KNOTT.
Q. What do you mean by "lecturing of them?"
A Telling them that they shouldn't and couldn't do so and so, and
correcting them when they went wrong.
Q. Have you been at the county seat of Pemiscot since this Smith and
Cude case was sent there?
A. I have not.
Q. Do you know whether the case has been tried there?
A. I have understood that it has not yet been tried.
Q. What has caused the delay?
A. Well, this last season the Mississippi river has overflowed most all
of that country, and it was so that they couldn't hold court there.
Q. How far is it from your place to Portage?
A. It is about sixty miles to go by water.
Q. What are the facilities for travel by water?
A. Well, the people go in skiffs, canoes, keels, and pirogues.
Q. How much does that kind of traveling cost a man?
A. Between Ilornersville and Portage, the fare is usually about five
dollars.
Q. When the water is either low or high, isn't it impossible to go
that way?
A. Yes, sir; if it is either too low or too high.
Q. Who presented the application for the change of venue about
which we have been talking?
A. Mr. Kitchen, I believe.
Q. Did you hear Mr. Kitchen tell the court that the counsel in the
case were willing to have the case sent to any other county than
Pemiscot?
A. I don't remember it, if I did.
Q. Did you hear Mr. Phelan make any representation to the court in
regard to the change of venue?
A. I don't remember any.
Q. Did you hear Judge Jackson tell Mr. Phelan or any one else to
sit down while the matter was up in court?
A. I did not.
Q. You say you were not present when the application for a change
of venue was presented?
A. I think I was not present when it was first presented.
Q. Why did you object to the case being sent to Bollinger?
A. I objected on the ground that the distance was so great.
JUDGE JAcKsov.  Did sending the case to Pemiscot drive you out of
it, or prevent you from attending to it?
A. No, sir.
Mr. KNOTT.  Why have you not attended to it, then?
A. Because I knew the waters were so high that the Judge could not
attend and hold court at the last term.
JUDGE JACcKsoN.  WAVaS not Pemiscot county the most convenient for
your client?
A. I suppose so.
20
305 
HIGHI COURT OF IMPEACHIIMENT.
Q. Were you present when changes of venue were awarded in the
two plank road cases?
A. I think not.
Q. Where does Mr. MIurphy live?
A. In Dunklin county, about five miles from Hornersville.
Q. And Mr. Farrar?
A. About two and a half miles from Kennett, the county seat of
Dunklin.
Mr. KNOTT.  Did each one of the witnesses in this case keep a skiff,
canoe, pirogue, or keel-boat?
A. Very likely none of them had any.
Q. It would cost each one of them at least five dollars to cross that
swamp, then?
A. Yes, sir; about that amount.
TESTIMONY OF JOIIN MARSH.
JOHN MARSH called and examined by Judge Jackson.
Q. In which county do you live, Mr. MIarsh?
A. In Dunklin.
Q. What is your business?
A. I am Clerk of the Circuit and County Courts, and am farming
somne.
Q. How long have you been in the Clerk's office?
A. About nine years as Clerk and deputy.
Q. Do you know of Judge Jackson being guilty of innumerable instances of oppressive, contumelious, insolent, and insulting expressions
towards lawyers and parties litigant; and did or not the Judge habitually indulge in such in the exercise of his official functions?
A. I do not, sir.
Q. W'hat has been the general demeanor of Judge Jackson towards
lawyers practicing in his courts, and towards witnesses and parties?
A. I have always thought that he treated them a good deal better
than they treated him.
Mr. KNOTT. You have your own standard of propriety, haven't you?
A. I speak from what I have seen.
TESTIMONY OF HENRY NOBLE.
IIENRY NOBLE called and examined by Judge Jackson.
Q. In which county do you reside, Mir. Noble?
A. In Dunklin county, Missouri.
Q. Have you been Sheriff of that county for some time past?
A. I have.
Q. Do you know anything about a certain William Atterbury being
in jail in your county?
A. I don't remember much about it. I was on a trip to this city at
the time I have understood he was confined there.
Q. Do you know who arrested him?
A. No, sir; not of my own knowledge.
Q. Who was your deputy at that time?
A. I didn't have any deputy.
Q. Did you arrest Atterbury?
A. No, sir; he never was in my custody.
Q. Do you know of Judge Jackson being guilty of innumerable instances of oppressive, contumelious, insolent, and insulting expressions
towards lawyers and parties litigant; and did or not the Judge habitually indulge in such in the exercise of his official functions?
306 
HIGH COURT OF IMPEACHMENT.
A. I do not.
Q. WAhat has been the general demeanor of Judge Jackson towards
lawyers practicing in his courts, and towards witnesses and parties, so
far as you know?
A. So far as my knowledge goes, he has treated the bar courteously.
TESTIMON~Y OF ORSON BARTLETT.
ORSOH BARTLETT called and examined by Judge Jackson.
Q. In which county do you reside, Col. Bartlett?
A. In Stoddard county.
Q. Were you in court at the August term, 1858?
A. I think I was.
Q. Had you a case in that court?
A. Yes, sir. There was an indictment against me in that court for
card-playing.
Q. Who was your attorney?
A. MIr. Kitchen-Solomon G. Kitchen.
Q. Well, how did it turn out?
A. Well, after a good deal of talk in the court, finally the Circuit
Attorney entered a note prosequi.
Q.. Were there any others indicted with you?
A. Yes, sir; three others-Albert  Jackson, David  G. Hicks,  and:
Isaac Brand.
Q. Do you recollect at the time of the game that you were indicted
for what part I had in it?
M{r. K.\NOTT. We object to that question. It is not material whether
Judge Jackson took any-part in that game of cards or not.  The ques tion is leading to a collateral issue of no importance whatever.
JUDGE JACKsON.  Do you recollect, Mr. Bartlett, whether I refused to
have anything to do with the game, or any part of it?
M,r. KNOTT. M'ay it please the Court, this question is clearly improper.
The fact of the guilt or innocence of Judge Jackson under this inidict ment can nlake no difference in this trial.  We charge him with dispo sinr of the indictment against the Circuit Attorney and himself in a
corrupt and illegal manner.  Whether he protested against a participa tion in the gaming charged, or not, would be a material matter upon
his trial under the indictment, but it is a question which cannot affect
the proceedings here.
JUDGE JACKSON.  I am glad, Mtr. Knott, that you are so candid as to
admit that by your mode of trying a man it makes no difference
whether he is innocent or guilty.
MAr. KN-OTT.  I makle no such admission.  But I say that your guilt or
innocence of the misdemeanor charged in that indictment cannot affect
the charge of usurpation of authority in telling the jury they should
not find a general verdict, but should find the facts, and of permitting
the Circuit Attorney to draw up an indictment against you and himself,
and afterwards come into court and enter a io/le prosequi as to that indictment.
JUcDGE JACKSON. Since it troubles you so much, I will withdraw the
question and pass on.
Q. Mtr. Bartlett, you will please go on and State what was done at the
trial. What did I do?
A. I don't recollect much about it. I recollect of your speaking some
time about the law of the case. You and the lawyers had some conversation about it.
Q. Wasn't that conversation as much or more to the lawyers than to
the jury?
307 
HIGH COURT OF IMPEACHMENT.
A. I took it to be addressed to the whole crowd, jury and all.
Q. How long have you lived in Stoddard county?
A. About twenty-two years.
Q. Have you been about the courts much since I have been Judge?
A. Well, I have been about the courts occasionally.
Q. Do you know of Judge Jackson being guilty of innumerable instances of oppressive, contumelious, insolent, and insulting expressions
towards lawyers and parties litigant; and did or not the Judge habitually indulge in such in the exercise of his official functions?
A. No, sir; I don't know of innumerable instances of anything of the
kind. I have sometimes seen difficulties spring up in his courts, and
hard feelings excited.
Q. What has been the general demeanor of Judge Jackson towards
lawyers practicing in his courts, and towards witnesses and parties, so
far as yo)u know?
A. I don't know that I am competent to answer that question. I
don't know how a Judge should act in his courts. I am not acquainted
with the law on the subject.
TESTIMONY OF JOHN R. WOODSIDES.
JOHN R. WOODSIDES called, sworn, and examined by Judge Jackson.
Q. In which county do you reside?
A. In Oregon.
Q. Were you at the Circuit Court in Stoddard county, November
term, 1857, at the trial of Sarah Buckner?
A. I was, sir.
Q. You will please state what occurred in court during that trial.
A. I don't remember anything unusual.
Q. Do you know anything about the Judge taking the prosecution
into his own hands?
A. I do not.
Q. What part did you take in the trial of that cause?
A. I was the Circuit Attorney. My recollection is that I examined
the witnesses and managed the prosecution myself.
Q. Do you remember anything unusal occurring during the examination of a witness named Grimsley?
A. I remember that Grimsley was a witness, but I don't remember
with any distinctness what questions were asked him or what he said.
I think he commenced by giving her admissions in a conversation with
him.
Q. Do you recollect objecting to any portion of his testimony?
A. 1 think it is likely I did object to some parts of a conversation
detailed by the witness; and if I remember correctly, something then
passed by way of discussion between me and the lawyers engaged for
the defense. 
Q. Do you recollect whether the court gave any instruction as to the
evidence of this witness?
A. I don't recollect.
Q. If any had been given, wouldn't you recollect it?
A. I cannot say positively. I suppose I would. It would probably
have made an impression on my mind.
Q. Do you recollect anything about the testimony of Grimsley having
been withdrawn from the jury?
A. Well, sir, I have an indistinct recollection that after I objected to
some statements made by the witness as illegal testimony, and when the
court met after dinner, I asked leave to discharge the witness. The
court assented, and I discharged him then, perhaps.
308 
IIIGH COURT OF IMPEACHMENT.
Q. Do you recollect whether there was any objection to this from the
other side?
A. There may have been objections made at the time. So much was
said upon the trial of the case that I do not remember any one thing
distinctly.
Q. Did the Judge give the jury any instructions concerning the testimony of Grimsley?
A. If so, I don't remember them.
Q. Did you attend the courts throughout the circuit in the fall of 1857?
A. Yes, sir.
Q. From your knowledge of the respective times of holding the courts,
state whether I was or could have been in Stoddard county in the
month of October.
A. I don't think you could have been there during that month.
Q. Mr. WVoodsides, you have been a good deal on the circuit. Do
you know of Judge Jackson being guilty of innumerable instances of
oppressive, contumelious, insolent, and insulting expressions towards
lawyers and parties litigant; and did or not the Judge habitually indulge in such in the exercise of his official functions?
A. No, sir.
Q. What has been the general demeanor of Judge Jackson towards
lawyers practicing in his courts, and towards  witnesses and parties, so
far as you know?
A. WVell, sir, as to your general demeanor, it is somewhat diversified.
Towards the younger members of the bar, so far as I have observed, it
has been uniformly kind. Towards some of the older members, it
would be difficult to describe it, exactly. I think for the last year or
so there has not been as much harmony and good feeling between the
court and Messrs. Phelan, Kitchen, and others, perhaps, as there ought
to have been so as to get along pleasantly.  I may say, however, that
you have treated the members of the bar generally with kindness.
Q. Do you know of any circumstances which lead you to conclude
that there was a conspiracy among some members of the bar to interfere
with my progress with business in the courts, and to get me out of office?
-Lr. Ki-OTr.  We must nmake at least a formal objection to this question.  It does seem to me that it is entirely too latitudinous, and must
lead to an investigation of a wholly collateral issue.
SENATOR PARSONS.  I would suggest to the respondent that he  had
better inquire first whether any conspiracy existed, and if the witness
answers affirmatively, he can then with more propriety go into the
detail of the facts connected with that conspiracy.
JUDGE JACKSON. That is it. I propose to show that there was a conspiracy to interfere with the discharge of my duties, and to get up this
prosecution.
Mr. HARDI,'.  WVe object merely to the. legality of this course, being
willing for the question to be answered, and the answer to be-ubjected
to the rules of evidence.
JUDGE JACKSO\-.  I repeat, then, Mr. Woodsides, do you know of any
facts or circumstances which led you to infer that there was a combination among some of the members of the bar on the circuit to interfere
with the discharge of my duties, and to get up this prosecution?
A. I know of no combination; and I know of but one circumstance
from which I could possibly infer that any disposition to get up one existed. I had a conversation with one member of the bar fiom which
such an inference might, perhaps, be drawn.
Q. What was that conversation?
Mr. H-.RDIN.  May it please the Court, it is evident that this question
is but following up one immaterial point to introduce many others.
309 
HIGH COURT OF IMPEACHMENT.
Testimony on this subject here is clearly inadmissible, and it is useless
to take up the time of the Court with such an investigation.  We object
to the question.
JUDnGE JAcKsoN. I insist upon the question, and will reduce it to
writing, so that it can be passed upon by the Court:
[The question was then reduced to writing by Judge Jackson as
follows:]
Q. What was the conversation to which you allude as being a circumstance to show a conspiracy to get up this prosecution?
The question for the action of the Court being, shall the respondent
be permitted to ask the question? it was decided in the negative by the
following vote:
AYES-Messrs. Fox, Goodlett, Gullett, Harris, Hedgpeth, Jones, McIlvaine,
Morris, Newlard, Rains, Robinson, Scott, Wilson, and Wood —14.
~OES —Messrs. Brown, Byrne, Coleman, Frazier, Hlalliburton, Horner, IJyer,
McFarland, \IcFerran, O',eil, Parsons, Peyton, Richardson, Vernon, Watkins,
and Wright-16.
Absent- Messrs. Churchill and Johnson.
Sic/k-Mr. Thompson.
The examination in chief then closed.
CROSS-EXAMIINED BY MIR. KNOTT.
Q. AIr. WAoodsides, were you a witness before the Judiciary Committee of the House of Representatives last winter?
A. I was.
Q. Did you write out your statement of the facts within your knowledge in relation to this Sarah Buckner trial?
A. I believe I did write out a part of it.
Q. Is that your statement, signed by yourself? (showing witness a
paper.)
A. That is nay signature.
Q. In your statement, used as evidence before the committee, didn't
you state that you were the Circuit Attorney, and that in that capacity
you asked leave of the court to withdraw the testimony of Griunsley,
and that it had been granted? Didn'tyou state thosefactssub,stanitially?
A. I presume that I did, for that is and was my understanding of the
facts.  The court took a recess while Grimsley was under examination,
and when the court met again, I asked the court to permit me to withdraw that witness or to withdraw his testimony-I don't remember distinctly how it was stated-and the request was granted.
Q. Was there any objection to this movement from the attorneys on
the other side?
A. It is likely there was. I don't remember.
Q. Didn't the other party insist upon the right to cross-examine this
witness?
A. I thinkl I can now remember that they did, and that there was
considerable contention over the point.
Q. Did they cross-examine any?
A. Not much, if any.
Q. Was it your understanding that the testimony of the witness was
entirely withdrawn from the consideration of the jury?
A. I believe I can say that it was.
Q. I didn't get a fair understanding of your statement in relation to
Judge Jackson's treatment of MIessrs. Kitchen and Phelan. You will
please state the nature of that treatment again.
A. Well, sir. I stated that his treatment of those gentlemen has not
310 
HIGH COURT OF IMPEACHMENT.
been uniformly kind.  I couldn't, however, go so far as to say that it has
been uniformly oppressive.  At the commencement of Judge Jackson's term as Judge, everything seemed to go off pleasantly. But for
a year or so back, his demeanor towards those two gentlemen, and probably towards others, has changed considerably.
Q. Is he not in the habit of giving you greater liberties and latitude
than he gives to either of those gentlemen, in the trial of a cause?
A. As to that, I make it a point never to ask for anything to which
I do not conceive I am clearly entitled, and he generally gives me all I
ask.
Q. Do you say that you have ever seen Judge Jackson treat either of
these gentlemen oppressively?
A. At times, had I been treated as they were, I should have considered it very oppressive. I have noticed a good deal of harsh treatment
on both sides.  I have said, and may here say again, that I could never
treat any court as I have seen MAr. Phelan treat Judge Jackson, and I
would not practice in a court where the Judge treated me as Judge
Jackson has treated Mlr. Phelan.
Q. WVhen you have noticed this harsh treatment of the court by these
gentlemen, were they not merely retorting?
A. I don't know. When the first difficulty that I noticed sprung up,
in Butler county, I was not present-that is, I was not present when
the difficulty commenced.
JUDGE J)CKSON.  You stated that when I first went on the bench, you
noticed no difficulty, but that afterwards there was a change in my demeanero towards MIr. Phelan and Mir. Kitchen.  When did you first discover the difiberence?
A. I first discovered it at Butler court, in the spring of 18S)7. I have
no recollection of any difficulty or change in demeanor before that spring,
in the month of May.
Q. Previous to that time, hadn't you heard those gentlemen express
themselves highly favorable to me as Judge?
A. I think I have.
Q. WVasn't the election for Judge held the next August?
A. It was.
Q. Did you notice any difficulty except this one that you speak of before the election?
A. No, sir.
Mfr. KNOTT.  Did you ever hear Mr. Kitchen speak in a harsh manner
to the court without observing that it was provoked by harshness coming from the court?
A. I cannot say that I have.  I spoke more particularly of Mr. Phelan. I believe now that I remember but the one instance before the
election, at the May term, 1857, of the Butler court.  Mlr. Phelan then
made some remarks such as I had never heard addressed to a court before, and that struck me as quite harsh; and the court in relly came
down tolerably rough upon Mr. Phelan.
JUDcGE JACKSOxN. Let me understand about that that you said concerning practicing in courts where you were treated as I treated Mr.
Phelan.  Was my conduct oppressive, or do you mean that it would
have been oppressive if you had been treated so after treating me as
you did?  Was it oppressive in view of the provocation which I received?
A. 1 do not mean to say that you had not provocation. I mean that
I would not practice in a court where my feelings and relations to the
Judge were such as Mir. Phelan's evidently were.
Q. What were the remarks which you say were addressed to me by
.Ir. Phelan, and which you say you never heard the like of before?
311 
HIGH COURT OF IMPEACHMENT.
Mr. KNOTT. I will call the attention of Senators to the fact, that this
conversation or occurrence is dated at a period prior to the date of any
specification in the articles of impeachment, and hence that it is useless and improper to go into these details. If this witness is permitted
to state this conversation, we may call Mr. Phelan to give his version of
the affair, its origin, and so on; and thus it opens.a door for collateral
issues and investigations which can serve no purpose but to delay this
trial, and spin it out indefinitely. In all our charges we have never
gone behind the first of August, 1857, and the respondent cannot make
an issue of this kind with any propriety. We object to the question.
JUDGE JAcKsoN said he believed he would submit the question to
the Senate, and reduced it to writing, as follows:
Q. What were the remarks you heard Mr. Phelan make to the Judge
at Butler court, in May, 1857, such as you say you had never betore
heard addressed to a court, and which induced him to retort in what
you call tolerably strong language?
The question for the action of the Court being, shall the respondent
be permitted to ask the question? it was decided in the negative by the
following vote:
AYEs-Mvessrs. Fox, Goodlett, Gullett, Hedgpeth, Jones, Morris, Newland,
Robinson, Scott, and WVilson-10.
NOEs-Messrs. Brown, Byrne, Churchill, Colemnil, Frazier, Halliburton, Harris, Horner, Ilyer, McFarland, AIcFerran, McIlvaine, O'Neil, Parsons, Peyton,
Rains, Richardson, Vernon, Watkins, Wood, and Wright-21.
Abseit —Mr. Johnson.
Sick —Mr. Thompson.
JUDGE JAcKsON. I have a few other questions to ask this witness
which I had forgotten. Mr. WVoodsicles, were you present at the Bluff,
at May court, 1858?
A. I think I was.
Q. Do you recollect the case of Gibson vs. Dunn, and what occurred
between the court and Mr. Phelan while it was being tried?
A. I was not present at the time.
Q. WVere you at the Butler court at the term when Blount, the Clerk,
was incapacitated for his duties by sickness or a reported drunkenness?
A. Yes, sir.
Q. Do you remember what time the court acljourned?
A. I don't remember precise. ly. I believe the court was in session two
days. Mr. Blount was in court the first day, and everything went on
as usual until Tuesday morning, when the Clerk being absent very little
more business was done.
Q. Do you recollect when the grand jury was discharged?
A. NTo, sir.
Q. Did you write any indictments at that term?
A. Yes, sir; several. I think I wrote five or six on Monday night or
Tuesday.
Q. Do you remember what business was transacted on Tuesday?
A. Well, several things were done, but I couldn't now state what they
were with any certainty.  I remember that some person sent to the
court a request for the appointment of a Deputy Clerk, and I afterwards
learned that the court refused to make the appointment.
Q. Who sent it in?
A. I understood that Mr. Phelan presented such a request to the
court; but I didn't see the document, and I do not know of my own
knowledge what was done with it.
Mr. KNOTT.  What length of time is allowed for holding that court?
A. A week, commencing on the first Mondays in May and October.
312 
HIGH COURT OF IMPEACHMENT.
Q. Had the grand jury finished their business when they were dis charged?
A. I think not.
Q. Were there any cases of considerable importance under investiga tion by the grand jury? 
A. I think there was at least one very important case.
Q. On what day were they discharged?
A. It is my impression that it was Tuesday.
SENATOR CHURCHIIILL. I did not get a perfect understanding of the
account which this witness gives of the trial of Mrs. Buckner; and would
like him to repeat some portions of his testimony.
SENATOR PARSONs.  I have some few questions to ask concerning that
trial, which may, perhaps, cover the points relative to which the gentle man from St. Louis desires a better understanding, and with his permis sion I will ask them now.
[Senator Churchill consenting, Senator Parsons proceed to ask the
questions given below:]
Q. Did Grimsley testify to any facts other than the confessions of the
prisoner?
A. Yes, sir. He stated that he knew the prisoner and her daughter,
and that they had been confined in his custody. I don't remember
that anything else was said before I propounded a general question as
to his knowledge of any facts in connection with the murder, when he
went on to state the substance of the prisoner's confessions.
Q. In your remarks to the jury, did you comment upon the testimony
of this witness, or any portion of it?
A. Miy impression is that I did not.
Q. WVhat was your reason for omitting to comment upon it?
A. I considered it withdrawn.
Q. When you speak of withdrawing oral testimony already before the
jury, what do you mean?
A. Well, sir, I am not certain that my language was correct. Speaking from my best recollection, I will say that at the time it is likely that
I considered the testimony of Grimsley illegal, and for that reason wished
to withdraw the witness.  When I applied to the court for permission
to do this, the Judge seemed to give an affirmative reply,-seemed to
assent to the withdrawal. Grimsley knew no material facts other than
the confessions, and I supposed it right to withdraw them. In my argument to the jury, I may have stated the action of the court, and  Q. When you applied to withdraw the witness, did you intend to withdraw his testimony-every thing that he said-wholly from the consideration of the jury?
A. Yes, sir. I intended to withdraw his testimony, and I suppose my
motion was so understood.
SENATOR SCOTT. Had Grimsley been subpenaed by both parties?
A. I don't know. It has, perhaps, been so stated in my presoace, but
I have no personal knowledge of the fact.
SENATOR PARSONS.  WVas Grimsley cross-examined at all, or offered as
a witness for the defense?
A. He was not offered as a witness for the defense, and my impression
is that he was not cross-examined.
SENATOR PEYTON.  You say that the whole of Grimsley's testimony was
taken away from the jury?
A. Yes, sir. I treated the whole of it as a nullity. All that he knew
consisted of declarations of the prisoner, which I supposed inadmissible.
I didn't comment upon them for that reason.
The testimony of this witness being here ended, the President of the
Senate inquired what action would be taken upon the writ of attachment
313 
HIGH COURT OF IMPEACHMENT.
issued against him by the court. The witness stated his reasons for not
obeying the subpena served upon him, and thereupon he was discharged
without the payment of costs, by unanimous consent.
TESTIMONY OF DAVID G. HICKS.
D]AVID G. HickS called and examined by Judge Jackson.
Q. Where do you reside, Mr. Hicks?
A. I live in Stoddard county, Missouri.
Q. Were you present at the Ripley Circuit Court when a person named
Kinsey was tried for hog stealing?
A. Yes, sir, I was present.
Q. Do you remember anything unusual occurring during that trial?
A. I remember that when one of the witnesses was on the stand, one
of the attorneys, Mir. Fox, after he had spoken three or four words, wished
him to stop so that he could write them down. Judge Jackson told the
witness to go on, and said that he was brought there for the benefit of
the court and jury.  A person who was there, Mr. Tyrell was his name,
while there was some talking about taking down the testimony, he remarked, "let him go on," and said he could take it down. Mr. Tyrell
did take down the testimony I presume. The court told them they
should have ample time after the trial was over to take down the testimony, and that the witness was here for the benefit of the jury and not
for the attorneys.
Q. Do you remember any interruption in Mr. Fox's speech?
A. Yes, sir. After the witnesses were all examined, Mr. Fox was the
first to argue the case for the defense. Ile commenced his speech against
Joe White, and went on speaking of him about fifteen minutes. I must
say that I thought Mr. Fox was partly or tolerably " tight," and he run
on at a great rate. He come to a part of his speech when his words were,
as nearly as I can recollect them, "Joe, Joe, thou renegade from thy
father's house!" and just here Judge Jackson called him to order, and
told him to confine himself to the law and the testimony in the case.
Mr. Fox then pulled out his watch, and remarked that he hoped the
court would deduct the time of this interruption from the time to which
his speech was limited. He then went on with his speech, and while he
was closing up what he had to say of Mr. White, the Sheriff or his deputy, passing by where he was, brushed against his coat, when he threw
up his hands in affectation of terror, and called out, "Oh! Judge, protect
me froin assault!"  The Judge again remarked, " Mr. Fox, you must
confine your,self to the law and evidence of the case."  Mr. Woodsides,
I think it was, timed him. He went on in the same strain for some
time. I believe he run over his time. Finally the Judge said to him,
"' Mr. Fox, take your seat."  Says he, " very well," and then he sat downl
That is about all I remember about it.
Q. Did you at this court hear me tell Mr. Fox that he lid, or that he
had made his client lie?
A. NTo, sir.  I believe it was at that court I saw you examine a paper,
and you called to Mr. Fox and asked him if he wrote that. Mr. Fox
said it was his writing. You had two papers, I think, and pointing to
them you said, " one or the other of these is false," and you pointed out
how it was that one was in conflict with the same person's sworn statement made previously.
Q. Were you present, Mr. Hicks, when the case of Moore vs. Eldridge
was tried?
A. Yes, sir.
Q. Please state the facts connected with any difficulty about an instrument of writing which you may have heard.
,314 
HIGH COURT OF IMPEACHMENT.
A. Well, there was a jury sworn, and the case came on to be tried.
A paper was introduced before the jury-I believe it was the articles of
partnership.  MIir. Parker died, and the suit was between Moore and his
administrator. There was a dispute about the paper. The date of the
instrument was crossed out, and a date some two years later written over
it. The ink of the last date was of a different color from that of the first.
Upon the date of the instrument rested the issue of the trial. They in troduced their witnesses, and, after the evidence was through, the jury
gave in their verdict, and the parties losing took an appeal. They filed
a bill of exceptions, and one reason alluded to this erasure of the date.
When they presented the bill of exceptions to the Judge he wouldn't
sign it without En alteration.  They didn't agree to the alteration which
he suggested, and lie then picked up the paper and showed them the
erasure, and then he wrote in the bill of exceptions, where' there was
mention of the paper, the words, "upon which there is an erasure in the
date."  He then signed it that way; whether they sent the case up or
not I don't know.
Q. Did the erasure affect the date of the instrument? did it change it?
A. Yes, sir; it would have been two or more years later if another
date had not been interlineated.
S\,x-TOR WVTKTX.S.  WVas the old date rubbed out?
A. Yes, sir, but it was still perceptible. You could tell the year,
month and day. I stated that the ink of the last date was of a different
color, but I am not sure that such was the case. I may have got that
idea from hearing it mentioned in the argument of the case.
Q. WVhich party wanted to use the instrument as evidence?
A. I believe it was Aloore-he was the plaintiff.
Q. Which party drew up the bill of exceptions?
A. I don't remember; I think it was MAr. Mfoore's attorneys.
JUDGE JACKSOX.  Were you at the Stoddard Circuit Court in August,
1858?
A. Yes, sir.
Q. Do you recollect the trial of MIr. Bartlett?  If you do, state to the
court fully the facts in relation to that trial.
A. At this court I was acting as Circuit Attorney.  Col. Bartlett was
indicted for playing cards, or betting five cents' worth of whisky on a
game of cards.  The jury heard the evidence.  It was to the effect that
they played for whisky. I don't now know whether I wrote out any instructions, but I wanted the court to instruct the jury that playing cards
for whisky, watermelons, and so on, was gaming.  The court said that he
didn't think either was indlictable.  He said that there must be a bet,
else there was no offense known to the law, and went on at some length
to explain the law. He said that if it was no more than one cent that
was played for, it was indictable if it was a bet; but unless it amounted
to a bet it was not indictable.  He told me that if I wanted the point
settled, the jury could find the facts, he would declare the law, and'then
I could file a bill of exceptions and take the case to the Supreme Court.
Then I entered a,-olle. Judge Jackson and myself were included in the
same indictment, and I asked leave to enter a anoe as to all the persons
included except myself. But the Judge said that the law provided another mode of disposing of the case against himself, and I only entered
a.o[e prosequi as to Bartlett.  There the case remains yet.
Mr. HAP)IN. Do you say you entered a nio/e as to all the parties but
yourself?
A. No, sir.  I asked leave to enter a aoe as to all except myself, but
the Judge said he could not permit such an entry in his own case, and
that when the proper order was made he would remove it. It was
neither dismissed nor acted upon in any manner.
815 
HIIGH COURT OF IMPEACHMENT.
JUDGE JACKSON.  YOU will please state further, Mr. tlicks, the facts
concerning an indictment against yourself at the November term of the
court.
A. I was at the August term indicted for an assault. At the November term I was appointed Circuit Attorney, pro tem., and on the second
day an attorney, one Mr. Miller, presented a motion to quash this indictment against me. I didn't know any one had appeared for me, but the
first thing I knew he had the motion ready.  The Judge wanted to
know the reason for the motion, and some little was said about it, but
the motion was not filed, and nothing was done in the case then. If
the indictment against me was ever quashed, I don't know it. The next
thing I knew about it I went back and examined the record, and saw
that on the last day an entry appeared, which said that the indictment
was quashed for reasons filed, but I could find no motion or reasons.
There was nothing of the kind on file. I hunted for them, but could
not find them.  1 never talked to Mr. Miller on the subject, and don't
know whether the record was made up that way on his motion or not.
It was not with my knowledge or consent. The indictment was found
at the special August term, and in November  SENATORi GOODLETT.  Who drew up this indictment against you?
A. I did it myself. I told the grand jury that I would go to the Judge
and get him to appoint some one else. One of them told me he had already informed the Judge, and that it was unnecessary.
JUDGE JACKSON.  Do you know whether Mr. Davis remained any length
of time in Bloomfield after the Buckner trial?
A. I think he went away the next day.
Q. Were you at Butler court at the time Mr. Blount was unable to attend to his duties?
A. No, sir.
Q. Were you present at Bloomfield when the mandamus case against
Jonas Eaker was tried?
A. Yes, sir.
Q. State what occurred there-what you saw of that case.
A. When the case came up, Mr. Kitchen and Mr. Phelan appeared for
Mr. Eaker.  Mr. Eaker was in the house at the time, setting not far
from me. Something was said about the service of the writ, when the
Judge remarked that a writ of this kind was of the same nature as a writ
of habeas corpus, and required the respondent himself to make a return,
and told Mr. Dowdy to go to Judge Eaker and offer him the original writ.
About this time Judge Eaker got up to leave the house, and in about five
minutes afterwards I sawv Mr. Dowdy go to Mr. Eaker and speak to him
a moment.  I heard Mr. Eaker reply that he was too old for that, and he
turned and went off The Sheriff came back and informed the court
that Mr. Eaker refused to be served with the original writ.  The Judge
spoke to the Clerk to issue an attachment, and in a little while after this
Mr. Eaker was brought in, and the Judge asked him if be didn't know
he was in contempt of court. Mr. Eaker said he didn't intend any contempt. The Judge said he supposed it was the fault of his attorneys,
and said, "if I thought you were your own adviser in this matter I would
inflict a penalty upon you." The Judge imposed no fine.
Q. Do you say that Mr. Kitchen and Mr. Phelan appeared as the at,
torneys of Mr. Eaker?
A. Well, Mr. Kitchen said he did not appear as an attorney, but as a
friend of the court, and said Mr. Eal-er had not been served.  The court
said the reason for making no return should be explained, and that he
ought to make the return and let that show that there had been no service.  He further said that Mr. Eaker was aware of the existence of the
writ, and had sufficient notice to place him in contempt if he did not
316 
HIGH COURT OF IMPEACHMENT.
make some return, and that if he didn't he would proceed against him
as if he were in contempt.  Mr. Kitchen kept contending that Mr. Eaker
was not in court, and said he did not appear for him, but as the friend
of the court. Judge Jackson remarked that the court would take care
of itself, and added something to the effect that he didn't want his
friendship.  Mr. Phelan came in and kept talking and apologizing for
Mr. Eaker making no return, and the Judge turned to him and asked
him if it wasn't possible for him to keep his mouth shut. I ain't sure
but he put his hand up to his mouth and held it shut a moment, and
then said he could. After not a great while, court adjourned. When
the Judge came down from the bench, Mr. Kitchen approached  Mr. KNOTT.  Stop, sir! You have not been asked as to anything that
occurred after court adjourned.
JUDGE JACKIsON.  State, Mr. Hicks, if you heard Mr. Phelan apologize,
and say he was to blame, and that he wouldn't do so again.
Mr. KNOTT.  WVe object.  You needn't answer, Air. Hiickls, until directed to do so by the Court.
JUDGE JACKSON.  I'll have to write out the question, then, I suppose.
I'll put the question thus: "Did you hear Mr. Phelan, after the court
adjourned, apologize to me, say he was to blame, and promise not to offend that way again?"
Mr. KNOTT.  The question is so extremely illegal, in both form and
substance, that I will not make a single argument upon the question of
its admissibility.
JUDGE JACKSO\.  It will be remembered by the Court that I asked MIr.
Phelan this very question, and he stated that he did not apologize.
Now, if I can contradict him upon this point, I have a right to do so.
Mr. IARDLN.  May it please the Court, this question could not have
been constructed in a more leading form. But this is not the only objection to it. If it is asked in order to contradict our witness, it must be
refused for two reasons. First, it is not a material question; and no principle of evidence is better settled than that you cannot contradict a
witness upon an immaterial question.  It is true that Judge Jackson
asked Air. Phelan some question of the same general nature as this, but
we objected to it at the time as immaterial. In the second place, to contradict a witness, even upon a material question, a foundation must have
been laid by asking the witness sought to be contradicted the same
question, with all the accompanying circumstances of time, place, and
connection.
JUDGE JACKSON.  I'll save the question and not put it now.  I'll pass to
another matter. Mr. Hicks, were you present when it is said I accused
Mfr. Phelan of tampering with the grand jury?
A. I was not.
Q. W'ere you in court during the Buckner trial?
A. I was, most of the time.
Q. Do you recollect how many witnesses were examined for the State?
A. I believe there were but two witnesses examined in regard to the
murder.
Q. State all you know in regard to that trial.
A. All I know about it I will state.  Mr. Woodsides conducted the
prosecution, and things went on very smoothly till they got to arguing
the case. Mr. Davis, Mr. Phelan, and Mr. Dennis were for the defense.
MIr. Davis, I think, made the first speech on his side. He was going on
with it, and had been speaking fifteen minutes, perhaps, when the
Judge stopped him. I think the first time the Judge stopped him, he
remarked that he (Mr. Davis) should not draw conclusions from what
was not evidence.  Mr. Davis went on for some time, when the Judge
said to him,  "Mir. Davis,-Air. Davis,-Mr. Davis,- you must confine
317 
HIGH COURT OF IMPEACIIMENT.
yourself to the law and evidence."  Mr. Davis did not notice him till he
had spoken thie third time. The Judge told him he couldn't be allowed
to go on in that way. Mr. Davis's precise words in reply, I can give
partly.  He said, " don't you allow me to suppose a case?  I'll have
nothing more to do with this trial then." He said something more, but
I cannot give his exact words. It was to the effect, however, that he
would not be Jeffreyized.  He then walked out.  I think I asked him
if he didn't wish to finish his speech, or something of that kind, and he
said) "it was ended just as I wanted it; it will have a better effect with
the jury, than if I had gone on and finished my speech."  That was his
remark to me.
Q. Do you remember whether the witness, Grimsley, was cross-exam ined?
A. Yes, sir.  Mr. Grimsley was cross-examined; I am sure of it; I
both saw and heard the attorneys for the defense cross-examine him.
Q. Were you in court at the time when the bill of exceptions was
presented?
A. I was not in the court house all the time. Court adjourned that
evening-no, you adjourned over one week to give Mr. Phelan time to.
prepare a bill of exceptions. He, in the meantime went to Cairo to attend a railroad meeting,-a meeting for something in regard to the Cairo
and Fulton Railroad, and he was taken sick. The Judge adjourned
the court again a time or two. I was not present when the bill of exceptions was finally presented.  I only know  from rumor what took
place then. I can't even say I was in Bloomfield at the time.
Q. Do you know of Judge Jackson being guilty of innumerable instances of oppressive, contumelious, insolent, and insulting expressions
towards lawyers and parties litigant?
A. I can't say I do.
Q. And did or not the Judge habitually indulge in such in the exercise of his official functions?
A. No, sir; I believe he did not.
Q. What has been the general demeanor of Judge Jackson towards
lawyers practicing in his courts, and towards witnesses and parties?
A. Hie generally got along very well with all of them except Mr.
Phelan, Mr. Fox, and Mr. Kitchen.  With Mr. Kitchen I know he had
somie difficulty on but one occasion.  But with Mlr. Phelan and:Mr.
Fox, I think I recollect several occasions when there were harsh things
said on both sides.
CROSS-EXAMINED BY MR. KNOTT.
Q. Mr. Hicks, do you pretend to give the precise words of the conver —
sations you heard during the Buclkner trial?
A. Yes, sir; in part.
Q. I believe you stated that you were in and out of tie court house
incidentally, and were not interested in the trial?
A. Yes, sir.
Q. Do you remember the day of the week when this mandamus case
was taken up? Was it the second or third?
A. I don't remember.
Q. Was it during the first or the latter part of the week?
A. I can't say. My impression is that it was about the middle of the,
week.
Q. What time of day was it?
A. I can't relate that either.
Q. WAhen Mr. Dowdy and Mr. Eaker walked out of the court house,
318 
HIIGH COURT OF IMPEACHMENT.
as you have told us, where did they meet? Where was Mr. Eaker
when you say MIr. Dowdy offeried to serve him with the original writ?
A. He was leaning on a bench outside. Either Mr. Dowdy offered him
the writ, or told him what the Judge said, when he made the remark I
repeated and walked off I don't remember whether I heard what Mr.
Dowdy said or not.
Q. Where were you when this happened?
A. Not a great ways off,-near the gate which entered the enclosure.
I don't remember my exact position.
Q. How long was this after the court directed the Sheriff to take 1Mr.
Eaker the original?
A. Not a great while.
Q. How far were you off at the time?
A. About as far as from here to that chair, (pointing to a chair in the
room.)
Q. And you say positively, that you heard Mr. Eaker say "I'm too
old for that?"
A. I did hear him say that he was "too old."
Q. How did you know the Sheriff had the original writ?  Did you
see it?
A. Yes, sir.  I saw it, together with the copy which had been served,
lying on the stand in the court house.
Q. What did Mr. Dowdy say when he presented the writ?
A. I can't give his exact words, and do not know that I heard them
all. But he told him that the service of Mr. Jackson, his deputy, was
wrong, and offered him the original.  Mr. Eaker said he was "too old,"
and I understood the balance of the sentence to be " for King Wasson."
Q. Did Mr. Kitchen or Mr. Phelan suggest to the court the failure of
the service of the writ?
A. Yes, sir; and the Judge told them that Mr. Eaker had sufficient
notice to make him aware of the existence of such a writ, whether it
was properly served or not, and that if he did not make a return he
would attach him for a contempt.
Q. And you say the court refused to permit Mr. Kitchen to appear as
amict.s cie, and enforced a return by attachment?
A. Well, it appeared so to me.
Q. Were you in court when Mr. Eaker was brought in under the attachment?
A. Yes, sir.
Q. What was it you heard the Judge say then?
A. I heard him say that Mr. Eaker was in contempt, but he supposed
it was the fault of his attorneys.
Q. You say also that you heard the Judge tell Mr. Kitchen that he
didn't want his friendship, when Mr. Kitchen suggested the failure of
service?
A. Yes, sir.
Q. Do you recollect whether anybody else was present atthe interview between Mr. Dowdy and Judge Jackson concerning Mr. Eaker's
refusal of the original writ?  Was Mr. Charles A. Davis present?
A. I don't think he was there. In fact I am sure he was not there
at that time-and believe he was not at that court. Others were present,
but I don't recollect any particular one at this moment.
Q. In this case of Moore vs. Eldridge, how many witnesses were examined?
A. I think I can name but two,-Lemuel Kittrel and Dr. Russell.
There may have been others.
Q. Where were the Judge and the parties when the bill of exceptions
in this case was tendered?
819 
HIGH COURT OF IMPEACHMENT.
A. I don't know where the bill was tendered. The first I knew about
it, there was a squabble about it which attracted my attention.
Q. Did you read the bill of exceptions?
A. I did not.
Q. Who was present at the time?
A. I think, MAr. Kitchen, Mr. Phelan, the lawyer for Mr. Eldridge,
and Mr. Bedford, were there.  I don't remember any others.
Q. Do you say that you could distinguish the two dates on the instru ment of writing about which there was a controversy?
A. Yes, sir.
Q. What were they?
A. I think one was 1854. I don't remember the date under the
other, though it was later I think.
Q. What do you say was the controverted point concerning this in strumen t?
A. The squabble was about the erasure. The Judge picked up the
bill of exceptions and interlined a statement of the fact that an erasure
existed.
Q. Are you sure the erasure affected the date?
A. I am sure the erasure affected the year. I have since had occasion to examine it.
Q. Did you say that the two dates were written with different ink?
A. Well, I don't know whether it was a different color, but I think
there was a difference.
Q. Are they in the same handwriting?
A. I don't know.
Q. How far apart were they?
A. One was immediately by the other.
Q. In the case where you say Mr. Fox was abusing Mr. Joseph White,
wasn't Mr. Fox speaking generally of the character of circumstantial
evidence, and didn't he in this connection merely allude to Joseph of
old by way of illustration?
A. I don't think he was.
Q. Didn't he allude to the circumstance of Joseph of old being the
victim of circumstantial evidence?
A. He frequently does such things, but I heard nothing of the kind
then.
Q. In this case which you relate of an altercation between Judge
Jackson and Mr. Fox, are you sure that the Judge had two papers when
he spoke to M1r. Fox?
A. Yes, sir. I am sure he had two papers.
Q. Do you pretend to give the exact language of the Judge upon that
occasion?
A. Well, I think I can give his exact language.  Says he, " Mr. Fox,
is this your handwriting?"  MIlr. Fox said it was.  "Then," said the
Judge, "you have certainly made your client swear falsely; one of these
papers contradicts the other." 
Q. MIr. Hicks, I will ask you whether it did not occur thus: The
Judge asked Mr. Fox if that was his handwriting, or if he wrote that,
and then told him that he either lied or caused his client to lie.
A. I can say positively that the Judge did not use the expression
"you have either lied or caused your client to lie."
Q. What was the character of the paper alluded to?
A. I think it was an answer.
Q. And you are positive that the assertion of the Judge upon that
occasion was, " you have made your client swear falsely?"
A. Yes, sir.
Q. Well, you have stated that at the August term, 1858, of the Stod
320 
HIGH COURT OF IMPEACHMENT.
dard Circuit Court you were indicted for an assault. Had you been
under recognizance to answer for that offense at the November term
following?
A. I do not know now whether I was or not.
Q. Did you enter into recognizance in court?
A. I can't answer.  I don't recollect.
Q. Was there any capias ordered in your case?
A. I think I entered into a bond in some case,-whether it was in
this or not I can't say. I don't know whether the Sheriff had any
capias for me or not.
Q. Was any order made for issuing a capias?
A. I believe the court made a general order for the issuing of capiasesc
in all the State cases requiring them.
Q. At the November term you were again appointed Circuit Attorney?
A. Yes, sir.
Q. On what day of that term was the indictment against you quashed?
A. The record shows that it was the last day, and for reasons filed.
It reads on, "now at this day comes the defendant by his attorney, etc.,
and the indictment in this case is quashed for reasons filed."
Q. Did you make any order to have that case, or the other in which
you were indicted jointly with the Judge, removed to another court?
A. No, sir; I was only acting Circuit Attorneypro temn., and I thought
it was not necessary for me to take that step.
Q. Did you make any application to the Judge to appoint some one
else to draw up the indictments against yourself?
A. No, sir. I told the grand jury that I would do so, but one of them
told me that he had himself informed the Judge of the facts, and it
was not necessary.
Q. Who was it told you this?
A. It was James L. Hale, foreman of the grand jury, I think.
The cross-examination of this witness being here concluded, on
motion of SENATOR WATKINS the Court adjourned.
EVENING SESSION.
SATURDAY, June 18, 1859
The Court met pursuant to adjournment.
The managers and respondent attended.
The examination of respondent's witnesses was resumed.
TESTIMIONY OF REUBEN P. OWEN.
RFUBENE P. OwEN called and examined by Judge Jackson.
Q. In which county do you live?
A. In Stoddard county.
Q. Do you hold any office there?
A. Yes, sir. I am Clerk of the Circuit and County Courts.
Q. How long have you held that position?
A. About twelve years. I was Deputy Clerk five years.
Q. Do you know of Judge Jackson being guilty of innumerable instances of oppressive, contumelious. insolent, and insulting expressions
21
321 
HIGH COURT OF IMPEACHMENT.
towards lawyers and parties litigant; and did or not the Judge habitually indulge in such in the exercise of his official functions?
A. Well, I can't say that I do know of innumerable instances of
occurrences of that kind. I have seen some difficulties and sparring
between attorneys and the court; but I never saw anything of the
kind towards parties to suits.
Q. What has been the general demeanor of Judge Jackson towards
lawyers practicing in his courts, and towards witnesses and parties, so
far as you know?
A. At times it has been kind, and at other times I have thought him
a little cross.
MIr. KNOTT.  Did you never notice that he was a little partial to
David G. Hlicks?
A. I don't know as to that. I know that he and MIr. Hicks are very
friendly.
TESTIMONY OF WILLIAM NORMAN.
WILLIAM NORMIAX called and examined by Judge Jackson.
Q. Where do you reside, Mr. Norman?
A. In Stoddard county, Missouri.
Q. How long have you been living there?
A. Nearly nine years.
Q. Have you been much about the courts?
A. Not a great deal.
Q. Do you know of Judge Jackson being guilty of innumerable instances of oppressive, contumelious, insolent, and insulting expressions
towards lawyers and parties litigant; and did or not the Judge habitually indulge in such in the exercise of his official functions?
A. No, sir; I cani't say that I do.
Q. What has been the general demeanor of Judge Jackson towards
lawyers practicing in his courts, and towards witnesses and parties,
so far as you know?
A. I can't say that I have ever seen anything myself that I regarded
as seriously wrong.
Mr. KXOTT.  YOU are only casually in court, I suppose?
A. Only so, sir.
TESTIMONY OF DR. JOHN D. SMITH.
Dr. JOHN D. SMITH called and examined by Judge Jackson.
Q  In which county do you live?
A. In Stoddard county.
Q. How long have you been living there?
A. I will have been living there ten years next July. 
Q. H'ave you been about in the courts much during that time?
A.. Some little.
Q. Do you know of Judge Jackson being guilty of innumerable instances of oppressive, contumelious, insolent, and insulting expressions
towards lawyers and parties litigant; and does or not the Judge habitually indulge in such in the exercise of his official functions?
A. I do not.
Q. What has been the general demeanor of Judge Jackson towards
lawyers practicing in his courts, and towards witnesses and parties, so
far as you know?
A. So far as I know, it has been gentlemianly.
322 
HIGH COURT OF IMPEACHMENT.
CROSS-EXAMINED BY MR. KNOTT.
Q. How far do you know?
A. I don't know very far, I suppose.
Q. You are only casually in court?
A. Yes, sir; only casually.
Q. From what you have seen, could you form an opinion as to the
general conduct of Judge Jackson towards lawyers practicing in his
courts?
A. I don't know what you mean by generally.
Mr. KNOTT. YOU can stand aside then.
JUDGE JACKSON here offered as evidence the following documents
being the original papers of the causes in which they are respectively
entitled; and, at the suggestion of SENATOR PARSONS, they were read
from the stand:
IN THE MATTER OF THE STATE OF MISSOURI VS. CHARLES RUSSELL
State of Missouri)
rersus        In vacation.  Petition for Habeas Corpus.
Charles Russell. 
To the Hoirorable Albert Jacks3oit, Judge of thLe Fifteenth JLudicial Circuit in the
State of Miissou i:
Your petitioner, the undersigned, Charles Russell, respectfully shows that he is
restrained of his liberty by William F. Cr3 ts, in the town of Bloomfield, in the
county of Stoddard, and State of Missouri: That, on the 4th day of January, 1859,
your petitioner was arrested upon a warrant or process issued by Jonas Eaker, a
Justice of the Peace in Stoddard county, and charged with passing a counterfeit
half dollar to one Thomas Jackson, and ever since the day aforesaid your petitioner has been, and still is, restrained of his liberty by said Cryts. That, on the
6th day of January, 1859, the said Jonas Eaker, Justice of the Peace aforesaid,
examined witnesses touching the matter charged in said warrant or process, but
the said Justice of the Peace did not examine nor take the statement of your petitioner touching said matter, and commanded said Cryts to take your petitioner into
custody, and in want of bail in the sum of three hundred dollars, your petitioner to
keep in custody until the next term of the Circuit Court of said county. That the
said restraint is illegal, because the said magistrate, the said Jonas Eaker, Justice
of the Peace aforesaid, who issued said warrant or process, and committed to custody your petitioner as aforesaid, did not, at any time, take the examination of
your petitioner, in relation to the offense charged, as provided by law. That your
petitioner has demanded a copy of the warrant, order, or process, by virtue of
which he is restrained as aforesaid of said Cryts, and such copy was refused by said
Cryts.
his
CHARLES, RUSSELL.
mark.
Charles Russell, petitioner above named, makes oath that the foregoing petition
and the matters therein are true to the best of his knowledge and belief.
his
CHIARLES P RUSSELL.
mark.
Subscribed and sworn to before the undersigned, Clerk of the Circuit Court of
Stoddard county, this 6th day of January, 1859.
REUBEN  P. OWEN,  Clerk,
by his Deputy, VAN W. IHAL,.
323 
HIGH COURT OF IMPEACHMENT.
State of Missouri. I g~
CounState of Missouri, } 88.  By the Habeas Corpus Act"
TheStlafe of ytissouri to  William F.  Cryts, Con?stable of Castor township, Stod   dard county, Greeting:
You are hereby commanded that the body of Charles Russell, under your custody
detained as it is said, under safe and secure conduct, together with the day and
cause of his being imprisoned and detained, by whatsoever name the said Charles
Russell may be known, you have before me, Albert Jackson, Judge of the Fifteenth
Judicial Circuit of the State of Missouri, at the court house in the town of Bloomfield, in said county, on the - day of January, 1859, to do and receive what shall
then and there be considered concerning the said Charles Russell, so imprisoned and
detained as aforesaid; and hereof fail not at your peril.
Witness my hand this 6th day of January, A. D. 1859.
ALBERT  JACKSON,  Judcye.
I do hereby certify and return that I have in custody the above named Charles
Russell, by virtue of a verbal order of Jonas Eaker, a Justice of the Peace in and
for Stoddard county, Missouri, and that no certified copy of said examination has
been delivered to me.
W. F. CRYTS, Con?stafble.
State of Missouri)
rersus
Charles Russell. J
The defendant being brought before me by the said William Cryts, and he showing no authority, or mittinus, or warrant, for holding in custody, it is ordered
that the said Charles Russell be discharged from the custody of said William Crytts.
January 7th, 1859.
ALBERT JACKSON.
IN THE MAITTER OF THE STATE VS. JOHN R. MAIN.
State of Missouri)
verses         In vacation.  Petition for Habeas Corpus.
John R. Miain. 
To the Honorible Albert Jackson, Judge of the Fifteenth Judicial Cirectit in the
State of Missouri:
John R. Main, the undersigned petitioner, humbly shows, that he is restrained
of his liberty by one John J. Jackson, at the town of Bloomfield, in the county
of Stoddard, in the State of Missouri. That on or about the 5th day of January,
1859, he was arrested on a warrant or process issued by one James Cravey, Justice of the Peace in the county of Stoddard, aforesaid, charged with grand larceny, and taken before the said Justice, who made and issued the warrant
or process, a copy of which is hereto annexed; and by virtue of which your
pet itioner is restrained of his liberty as aforesaid.  That the property charged
as having been stolen by your petitioner, vour petitioner held in possession by reason of a contract made with the owner thereof. That the said restraint is illegal
in that the said magistrate who made the said warrant, by virtue of which your
petitioner is restrained of his liberty, did not at any time before committing your
petitioner as aforesaid, take the examination of your petitioner, i'relation to the
offense charged, as provided by law; but when your petitioner asked leave to
makle a statement in relation thereto, said magistrate refused to hear the same,
and told your petitioner that what your petitioner could say would make  no
difference. That the said warrant of commitment is insufficient and defective,
and the said magistrate has not certified the examination of your petitioner as
by law comnmandedandnd there is no testimony to warrant such restraint. Therefore your petitioner humbly prays that your honor will inquire respecting said
restraint, and your petitioner as in duty bound will ever pray, &c.
JOHN R. MAIN.
John R. Main, petitioner above named, makes oath that the above petition
and the matters therein are true to the best of his knowledge and belief.
JOHN R. MAIN.
,324 
HIGH COURT OF IMPEACHMENT.
Subscribed and sworn to before the undersigned, Clerk of the Circuit Court of
Stoddard county, Missouri, this 7th day of January, 1859.
RIEUBEN P. OWEN,  Clerk,
by VAN W. HALE, Depit,y.
State of Missouri,   S
County of Stoddard, I.
The State of -Vissou1i to the Constable of Richland Township aeidl the feepe  of
the jail of said county of Stoddard, Greeting:
These are to command you, the said Constable, forthwith to convey and deliver
into the custody of the keeper of the jail of the county of Stoddard aforesaid,
the body of John R. Main, taken and brought before me, a Justice of the Peace
within and for the county aforesaid, and charged before me, upon the oath of
Robert Whitehead, of Stoddard county, with grand larceny; and you, the said
keeper of the said jail, are hereby required to receive the said John R. Main
into your custody into the said jail, and him there safely keep until he shall
thence be discharged by due course of law.
Given under my hand this 5th day of January, A. D. 1859.
JAMES  CRAVEY, Justice o  the Peace.
A t.rue copy of the original mnittinus in my haids.
JAMES DOWDY, Sheriff,
by his Deputy, JOHN J. JACKSON.
State of Mvlissouri,  }   c
Statey of MiSsouar, a8. "By the Habeas Corpus Act."
County of Stoddard, j 
The State of Yfissouri to Johns J. Jackson, I)eputy Sgher,f of Stos'(ard county,
Greetiizg:'
You are hereby commanded that the body of John PR. Main, under your
custody detained as it is said, under safe and secure conduct, together with the
day and cause of his being imprisoned and detained, by whatsoever name the
said John P. Main may be known, you have before me, Albert Jacklson, Judge
of the Fifteenth Judicial Circuit of the State of Missouri, at the court house
in the town of Bloomfield, in said county, on the       day of January, 1859,
to do and receive what shall then and there be considered concerning the said
John R. Main, so imprisoned and detained as aforesaid; and hereof fail not at
your peril.
Witness my hand this 7th day of January, 1859.
ALBERT  JACKSON,  Itdgye.
I do hereby certify and return that the above named John R. Main is in Iyv
custody, by virtue of a warrant made and issued by James Cravey, Justice of
the Peace in the county of Stoddard. a copy of which is hereto annexed and
filed.  That I have not in my possession, and never had, any certified examination of said John R. Main, in relation to the offense stated in said warrant, and
no testimony in relation thereto.
JAMES DOWDY,   Shcriff,
by his Deputy, JOHN. J. JCKSON.
The State of Missouri
verszas        Charged with Grand Larceny.
John Main.      J
The defendant being brought before me in obedience to the within writ, and
there being no charge brought against him, nor any evidence produced against
him, and there being no evidence that he had been legally arrested and tried
before a committing magistrate, or before any one having authority to comnmit
himn to the custody of the Jailor of Stoddard county, and the paper herewith
presented as a mittimus not being sufficient in form and substance to authorize
the Jailor of Stoddard county to hold him, the said John Main, in custody,
it is ordered that he be forthwith discharged.
January 7th, 1859.                                   ALBERT JACKSON.
325 
IIIGH COURT OF IMPEACHIMENT.
During the reading of the foregoing documents, Mr. David G. Hicks
came into the Senate Chamber, and stood near the Secretary's desk until the reading was concluded. He then addressed the President, and
asked permission to correct some statements made by him in his examination during the forenoon session. An assent being signified, he
said that upon reflection since he was examined, he wished to retract two
statements.  The first was that he had been told by Mr. James L. Hale,
foreman of the grand jury at the August term of the Stoddard Circuit
Court, that the fact of a charge being under investigation against himself (Hicks) had been communicated to the Judge.  He was, he said,
informed by Mr. Hale that no such conversation had taken place, and
he was now satisfied that he had been mistaken as to the man. The
second was an answer to a question by Mr. Knott, whether Mr. Fox
was commenting on circumstantial evidence when he was interrupted
by Judge Jackson, in the Kinsey case.  In his examination he had
given a negative answer, and he now remembered that Mr. Fox wtas
commenting in that way. He therefore wished these two statements
stricken out of his testimony by the reporter.
TESTIMONY OF WILLIAM I H. BUFFINGTON.
WILLIA.M H. BUFFINGTON called, sworn, and examined  by Judge
Jackson.
Q. Mr. Buffington, have you any papers in your office containing the
signature of Jacob C. Blount, former Clerk of Butler county?
A. At your request, Judge Jackson, I have looked over the files of
returns in my office, and have selected four specimens of Mr. Blount's
signature, which I have here with me.
Q. From a comparison of this signature with those attached to the
papers, would you pronounce it genuine?
[Witness was here shown, by Judge Jackson, the paper purporting to
be a request by Mr. Blount for the appointment of Mr. Donaldson as
Deputy Clerk of the Circuit Court of Butler county.]
A. In reply I will state that I suppose no man, with my knowledge
of the handwriting of Mr. Blount, would swear positively that this is not a
genuine signature.  But I will say that this does not resemble the signatures in these specimens, nor others in my office; and basing nay judgment on the signatures which I suppose to be genuine, I should say that
this was not Mr. Blount's writing.  This (pointing to the request for the
appointment of the deputy) is a rounder, smoother hand. The J is
written differently from the invariable manner of writing it in all the
other signatures I have seen, and there are other points of dissimilarity
which any one can notice by inspecting and comparing it with the specimens which I have here.
[The papers were here handed around among the Senatop for examination.]
SENATOR PARSONS.  Mr. Buffington, did you say you had never seen
Mr. Blount write his name?
A. If I did not, I say now that I never saw him write, and my knowledge of his handwriting has been acquired solely from papers sent from
him to my office.  I presume that the returns from his office were written by himself, from the fact that they have been uniformly in the same
handwriting.
Mir. KNOTT.  I will ask you, Mr. Buffington, what effect the knowledge
of the fact that a man was probably drunk at the time of writing his
name,-so drunk that he had to be held up for the purpose,-would
have upon your judgment as to the genuineness of that particular sig
326 
HIGH COURT OF IMPEACHMENT.
nature?  Would it do to apply the usual rules for determining the genuineness of a signature in such a case?
A. I do not think it would.
TESTIMONY OF HENRY MILLER.
HENRY MIILLER called and examined by Judge Jackson.
Q. In which county do you live?
A. In Stoddard county, Missouri.
Q. How long have you been living there?
A. Ever since and before the county was organized. About thirty-six
years.
Q. Have you been much about the courts in that county?
A. Ever since I have lived there I have been off and on at every
court, I reckon.
Q. Do you know of Judge Jackson being guilty of innumerable instances of oppressive, contumelious, insolent, and insulting expressions
towards lawyers and parties litigant; and does or not the Judge habitually indulge in such in the exercise of his official functions?
A. No, sir; I don't.
Q. What has been the general deme,anor of Judge Jackson towards
lawyers practicing in his courts, and towards witnesses and parties, so
far as you know?
A. So far as I have any knowledge, I don't know that he has treated
them wrong in any way.
TESTIMONY OF THOMAS J. WALKIER.
THOIAS J. WVALkER called and examined by Judge Jackson.
Q. In which county do you live?
A. In StoddarcT county.
Q. How long have you lived there?
A. Fifteen years last March.
Q. Have you been about courts much for the last three or four years?
A. Yes, sir. I am pretty generally about the courts.
Q. Do you know of Judge Jackson being guilty of innumerable instances of oppressive, contumelious, insolent, and insulting expressions
towards lawyers and parties litigant; and did or not the Judge habitually indulge in such in the exercise of his official functions?
A. No, I don't.
Q. What has been the general demeanor of Judge Jackson towards
lawyers practicing in his courts, and towards witnesses and parties, so far
as you know?
A. It's my opinion you give them rather too much latitude.
MIr. KNOTT.  We don't want your opinion; we want facts.
JUDGE JACKSON.  What is the opinion of the lawyers themselves, generally?
A. Well, for the first eighteen months they praised you, and they began to grumble and complain then.
Mr. KNOTT.  What is your occupation?
A. I am a farmer.
TESTIMONY OF JOHN R. DILLON.
JOHN R. DILLON called and examined by Judge Jackson.
Q. Where do you live, Mr. Dillon?
A. In Ripley county.
Q. Have you held any office in that county?
32T 
HIGH COURT OF IMPEACHMENT.
A. I have been the High Sheriff of that county for several years.
Q. How many years?
A. Four.
Q. Do you know of Judge Jackson being guilty of innumerable instances of oppressive, contumelious, insolent and insulting expressions
towards lawyers and parties litigant; and did or not the Judge habitually indulge in such in the exercise of his official functions?
A. No, sir; not in my presence.
TESTIMOXY OF THOMAS L. MOORE.
TIIOMAS L. MOORE called and examined by Judge Jackson.
Q. Do you know anything about one William Atterbury being in custody about the first of February, 1858?
A. Yes, sir; I was helping to guard him about that time, a day and a
night, in Kennett.
Q. What became of him?
A. On Sunday night, while he was in charge of Mr. Parish, he got
away, and I don't know what became of him after that.
Q. Was he ever in jail?
A. No, sir. The jail was out of fix; the key was at the shop, I believe, and we couldn't put him in jail.
CROSS-EXAMINED BY MR. KNOTT.
Q. In what county was this?
A. In Dunklin county.
Q. What time was it?
A. I think it was in February, though 1 don't remember the day of
the month.
Q. Who arrested this man Atterbury?
A. Davy Hicks fetched him there,-him and another man.
JUDGE JACKSOr. On what day of the week did they arrest him?
A. They brought him there on a Saturday, and on Sunday night he
broke custody, as well as I recollect.
[Judge   Jackson here announced that he was through with his testimony, but in a few minutes afterwards said he had one more witness
to examine, who was accordingly called.]
TESTIMONY OF JAMES L. HALI,E.
JAMES L. HALE recalled and examined by Judge Jackson.
Q. Did you ever inform me that the grand jury, at the August term,
had under investigation a charge against me, or one against David
Hicks?
A. No, sir, I didn't. I didn't know whether it was right to do so or
not. There was some talk about it, but I didn't tell you.
Q. Wasn't it a conversation as to what they would do if they had a
charge against the Judge or the Circuit Attorney, and did any one say
they had consulted me about it?
A. I don't remember.
JUDGE JACKSON here announced that he was through.
The managers asked a short time in which to consult as to what rebutting testimony they should offer, which was granted.
328 
HIGH COURT OF IMPEACHMENT.
SENATOR PARSOnNS then offered the following resolution:
Resolved, That the Committee on Accounts allow William Vailover and Eugene Donnelly, special messengers employed in this cause, the sum of five dollars
per day and ten cents per mile for their services,-mileage to be computed as is
provided for witnesses.
SENATOR GULLETT offered the following amendment to this resolution:
Amend by striking out "five dollars" and inserting "three."
This amendment was rejected by the following vote:
AYEs-Messrs. Fox, Frazier, Goodlett, Gullett, McFerran, McIlvaine, Richardson, Thompson, and Wright —9.
NOEs-vMessrs. Brown, Byrne, Churchill, Coleman, Hialliburton, Harris, Hedgpeth, Horner, Ilyer, Jones, McFarland, Morris, Newland, O'Neil, Parsons, Peyton, Rains, Scott, Vernon, Watkins, Wilson, and Wood-22.
Absent-Messrs. Johnson and Robinson.
The question then being upon the adoption of the original resolution,
it was adopted by the following vote:
AYEs-Messrs. Brown, Byrne, Churchill, Coleman, Goodlett, Halliburton, Hiarris, Hedgpeth, Horner, Hyer, Jones, McFarland, Morris, Newland, O'Neil, Parsons, Peyton, Rains, Scott, Thompson, Vernon, Watkins, Wilson, and Wood-24.
NoEs-Messrs. Fox, Frazier, Gullett, McFerran, McIlvaine, Richardson, and
Wright-7.
Absent-Messrs. Johnson and Robinson.
The following named witnesses were discharged by consent of parties:
For the State-James Cooper, C. A. Davis, David Mfanning, N. W. Sitz,
W. F. Cryts, William Ringer, James Walker,         Whitehead, J. J. Jackson, J. A. Walker, William 0. Hull, D. McCloud, James Hale, Moses
Harvey, and W. G. Harty.
For tAe Respondent-Isaac Hobbs, William  B. Cone, C. M. Dowdy, H.
A. Shook, Robert Miller, Jacob Miller, William Morgan, John Gallaway,
James Hodges, W. B. Howell, and John R. Woodsides.
On motion of SENATOR. WATKI,S, the Court adjourned.
329 
HIGH COURT OF IMPEACIMIENT.
THIRTEENTH DAY.
MONDAY, June 20,1859.
The Court met pursuant to adjournment, and was opened by proclamation.
The managers and respondent attended.
IENRY MILLER, witness on the part of the respondent, was recalled to
the stand, and the question given below was proposed by the respondent,
which was objected to by the managers, and decided to be legal and
proper by the following vote:
AYES —Messrs. Churchill, Coleman, Fox, Goodlett, Gullett, Harris, tIedgpeth,
Jones, McIlvaine, Morris, Newland, Peyton, Rains, Richardson, Robinson, Scott,
Watkins, Wilson, and Wood-19.
NOEs-Messrs. Brown, Byrne, Frazier, Halliburton, Horner, Ityer, McFarland,
MlcFerran, O'Neil, Thompson, Vernon, and Wright-12.
Absent-Messrs. Johnson and Parsons.
Queszion.  What was it that influenced the jury in the case of Berry
vL. Griffie to render a verdict for more than the petition asked for?
[The answer of the witness was to the effect that the jury had given
the excessive verdict owing to the fact that they gave the plaintiff the
amount of damages sued for, and then computed interest upon that
amount.]
The respondent here announced that he had no further evidence to
offer, and the witnesses on both sides were, by consent, discharged.
SENATOR JONES then moved to adjourn until two o'clock, P. M.
SENATOR PARSONS, by way of amendment, moved to adjourn until three
o'clock, P. M.
The question being upon adjourning until three o'clock, P. M., it was
decided in the negative by the following vote, the ayes and noes being
demanded by Senator Goodlett:
AYEs-Messrs. Byrne, Gullett, Halliburton, Harris, Hedgpeth, McFarland,
Parsons, andl Rains-8.
NoEs-Messrs. Brown, Churchill, Coleman, Fox, Frazier, Goodlett, Horner,
Hyer, Jones, MeFerran, McIlvaine, Morris, Newland, O'Neil, Peyton, Richardson, Robinson, Scott, Thompson, Vernon, Watkins, Wood, and Wright-23.
Absent-Messrs. Johnson and Wilson.
The question then being upon adjourning until two o'clock, P. M., it
was decided in the negative by the following vote, the ayes and noes
being demanded by Senator Halliburton:                  _
AYEs-Messrs. Byrne, Churchill, Fox, Gullett, Halliburton, Harris, Hedgpeth,
HIyer, Jones, and Rains-10.
NOES-Messrs. Brown, Coleman, Frazier, Goodlett, Horner, McFarland,
McFerran, McIlvaine, Morris, Newland, O'Neil, Parsons, Peyton, Richardson,
Robinson, Scott, Thompson, Vernon, Watkins, Wood, and Wright-21.
Absent-Messrs. Johnson and Wilson.
[The foregoing account of the proceedings of this day is extracted,
(with the exception of the paragraph included in brackets,) from the
journal kept by the Secretary, an accident having prevented the reporter
from being present, and he being, on this account, unable to present a
more full report.]
330 
MR. HARDIN'S ARGUMENT.
[Reported by George C. Stedman.]
MIX. JIARDIN'S ARGUMENT.
331
The managers and respondent having announced themselves ready to
proceed with the argument of the cause,
3Mr. HARDIN rose and said:
Mr. PRESIDENT: It becomes my duty to open the argument in this
cause; and in doing so I must confess that I feel sensibly the responsibility resting upon me. This arises from two considerations,-the serious character of the charges, and the position I hold, representing as I
do the people of the State. It is due to them, and to this Senate, that
the law and the evidence should be presented in as clear and forciblo a
manner as possible. I regret my great inability to come up to this
standard; yet, having accepted the responsibility and honor of the position, I will now present an argument upon the charges before this
Court.
It is the history of our race that persons in power are oppressive, tyrannical, partial, corrupt; not all, but many. It is also a part of that
history that, by these means, the liberties of the people are, more or
less, destroyed. Sensible of these truths, the founders of our State
government, desiring to obtain for themselves and their posterity the
greatest happiness possible, and believing that liberty, entire liberty,
was the means of that happiness, sought to establish the one in order
to attain the other. They were also sensible of another truth, that if
persons in office were faithful and impartial in the discharge of duty,
the happiness and liberties of the people might be preserved. Apprehensive that this would not always be the case, the founders of the State
government seemed to have framed our constitution and laws with an
eye indicating extreme jealousy of persons in authority.  For instance,
they established a Legislative department, and yet the Representatives
are allowed to serve but one term of two years, and Senators but one
term of four years, before they shall account, as it were, to the people,
for the fidelity of their acts. They established an Executive department; but the incumbent is ineligible for reelection on the expiration
of his term of office. They established a Judiciary department; and
yet all those portions of the constitution and laws providing for it, show
that they were extremely jealous of those who were to wear the ermine
of the bench.   To preserve the independence of the judiciary, the
Judges were appointed during good behavior, subject, however, to renmoval by address and impeachment. In addition to this, they might
for misdemeanors in office be punished by fine and imprisonment. It
so happened, however, that the people thought that the tenure of good
behavior was too long, and the Judges too far removed from pnper accountability.  The constitution was, therefore, reformed, and the tenure
limited to six years. Notwithstanding this limitation, and early reckoning with the Judges, those checks upon their conduct already mentioned
were still retained. This, sir, is a part of our constitutional history, and
it shows that the people were jealous of the power and influence of position to their injury. It was never taken for granted that because a
man was Judge he could not err; it was never supposed that he could
not be corrupt; it was never regarded as an office wherein no partiality
could exist, or that authority could not be abused.
Again, ours was modeled after the Federal constitution in almost every
principle. The provisions of the two in providing for the impeachment
of the Judges of the respective jurisdictions seem to be the same. 
HIGHI COURT OF IMPEACILMENT.
There is no power in the Federal constitution for removing Judges
by address   Such a provision was proposed in th, constitutional convention, but was not adopted. For this reason, Judges of the United
States are exempt from accountability for causes for which our Judges
may be removed. Notwithstanding this, the jurisdiction of the two
constitutions upon the subject of impeachment seems to be the same.
If this be so, the precedents and adjudications of the Senate of the
United States as a court of impeachment will aptly apply here. Although the term " high crimes and misdemeanors" is the special language of the constitution of the United States, and the term "misdemeanor in office" that of ours, we shall maintain that they have the
same force and signification, since we have Mr. Blackstone for authority that the words "crimes" and "misdemeanors" are synonymous.
If there be any difference, the term " misdemeanor in office" comprehends greater latitude of signification than the term "high crimes and
misdemeanors." The word "misdemeanor," as rendered by the best
authorities, means evil intent, ill conduct, fault, and mismanagement.
We maintain, therefore, that where the conduct of the Judge arose
from ill intent, whether to gratify malice or serve friendship, he is guilty
of a misdemeanor in office. But, sir, it has been said upon this occasion
that a Judge is not impeachable for any act, the commission of which
has not been previously prescribed by positive law to be an offense.
This is not a new position. It was taken at an early day in the Senate
of the United States, and found to be untenable. As a full answer to
the argument used in support of that position, I will read to the Senate the views of Mr. Story:
There is also much force in the remark, that an impeachment is a proceeding
purely of a political nature. It is not so much designed to punish an offender,
as to secure the State against gross official misdemeanors.  It touches neither his
person nor his property; but simply divests him of his political capacity.1 Story's Com. p. 560.
The offenses to which the power of impeachment has been and is ordinarily
applied, as a remedy, are of a political character. Not but that crimes of a
strictly legal character fall within the scope of the power, (iobr, as we shall presently see, treason, bribery, and other high crimes and misdemeanors  are expressly within it;) but that it has a more enlarged operation, and reaches what
are aptly termed political offenses, growing out of personal misconduct, or gross
neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of a political office. These are so various in their character,
and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law.-Ibid. p. 532, ~ 764.
Again, there are many offenses, purely political, which have been held to be
within the reach of parliamentary impeachments, not one of which is in the
slightest manner alluded to in our statute book. And, indeed, political offenses
are of so various and complex a character, so utterly incapable of being defined,
or classified, that the task of positive legislation would be imlpacticable, if it
were not almost absurd to attempt it. What, for instance, could positive legislation do in cases of impeachment like the charges against Warren Hastings, in
1788? Resort, then, must be had either to parliamentary practice, and the
common law, in order to ascertain what are high crimes and misdemeanors; or
the whole subject must be left to the arbitrary discretion of the Senate, for the
time being. The latter is so incompatible with the genius of our institutions,
that no lawyer or statesman would be inclined to countenance so absolute a despotism of opinion and practice, which might make that a crime at one time, or
in one person, which would be deemed innocent at another time, or in another
person.  The only safe guide in such cases must be the common  law, which is
the guardian at once of private rights and public liberties.  And however much
it may fall in with the political theories of certain statesmen and jurists to deny
the existence of a common law belonging to and applicable to the nation in ordinary cases, no one has as yet been bold enough to assert that the power of im
,.'D'3 2 
MR. HIARDIN'S ARGUMENT.
peachment is limited to offenses positively defined in the statute b)ook of the
Union, as impeachable high crimes and misdemeanors.-Ib. p. 555, ~ 797.
Congress have unhesitatingly adopted the conclusion, that no previous statute
is necessary to authorize an imnpeachmenelt for any official misconduct; and the
rules of proceeding, and the rules of evidence, as well as the principles of decision, have been uniformly regulated by the known doctrines of common law
and parliamentary usage. In the few cases of impeachment which have hitherto
been tried, no one of the charges has rested upon any statutable mis,demeanors.
-lb. p. 566, ~ 799.
It is, therefore, not necessary to prescribe previously, by positive law,
what conduct of the Judge shall be deemed misdemeanors in office,-it
is impossible, there being so many ways to exhibit corruption, so many
ways of exercising partiality, so many ways of abusing authority. Precedent and common law are the intelligent guides, and they teach us that
Judges may be impeached for personal misconduct, abuse of authority,
oppression of a citizen, be he an attorney, litigant, or spectator; or for
any violation of law, or rules and practice in courts of justice. As illustrative of this position, and to show how far the power of impeachment
extends, I propose to read several precedents, many of which are quite
the same, in fact, as many of the charges now under consideration before
this Court. In 1804, John Pickering, a Judge of the District Court of
the United States, was impeached for misbehavior, and found guilty of
all the charges by a constitutional majority of the Senate. The charges
were founded on the conduct and rulings of Judge Pickering in only
one case, and are as follows, as seen in Sargeant's Constitutional Law,
page 376:
First. For misbehavior as a Judge, in ordering the delivery to the claimant of
goods seized by the Collector without requiring security. Second. In refusing to hear
evidence, offered on the part of the United States, to show the forfeiture of said
goods. Third. In refusing to allow the United States to appeal from his decree, in
a case of admiralty and maritime jurisdiction, where the matter in dispute exceeded three hundred dollars. Fourth. For appearing on the bench, for the purpose
of administering justice, in a state of total intoxication, produced by the free and
intemperate use of inebriating liquors, and then and there frequently, in a most
profane and indecent manner, invoking the name of the Supremne Being. He
was found guilty on all these charges, by a constitutional majority of the Senate,
and a sentence of removal from office was passed on the 12th of March, 1804.
In 1805, Judge Chase was impeached on the following charges, but
was acquitted by the Senate of the United States:
ARTICLE I.  That, unmindful of the solemn duties of his office, and contrary
to the sacred obligation by which he stood bound to discharge them "faithfully
and impartially, and without respect to persons," the said Samuel Chase, on the
trial of John Fries, charged with treason, before the Circuit Court of the United
States, held for the district of Pennsylvania, in the city of Philadelphia, during
the months of April and May, one thousand eight hundred, whereatthe said
Samuel Chase presided, did, in his judicial capacity, conduct himself in a manneIr highly arbitrary, oppressive, and unjust, viz:
First. In delivering an opinion, in writing, on the que tion of law, on the construction of which the defense of the accused materially depended, tending to
prejudice the minds of the jury against the case of the said John Fries, the prisoner, before counsel had been heard in his defense.
Second. In restricting the counsel for the said Fries from recurring to such
English authorities as they believed apposite, or from citing certain statutes of
the United States, which they deemed illustrative of the positions upon which
they intended to rest the defense of their client.
Third. In debarring the prisoner from his constitutional privilege of addressing
the jury (through his counsel) on the law, as well as on the fact, which was to
determine his guilt, or innocence, and at the same time endeavoring to wrest
from the jury their indisputable right to hear argument, and determine upon the
383 
334    *       HIGHI COURT OF IMPEACHMENT.
question of law, as wvell as the question of fact, involved in the verdict which
they were required to give.
In consequence of which irregular conduct of the said Samuel Chase, as dangerous to our liberties as it is novel to our laws and usages, the said John Fries
was deprived of the right secured to him by the eighth article amendatory of the
constitution, and was condemned to death without having been heard by counsel
in his defense, to the disgrace of the character of the American bench, in manifest violation of law and justice, and in open contempt of the rights of juries, on
which, ultimately, rest the liberty and safety of the American people.
ARTICLE II.  That, prompted by a similar spirit of persecution and injustice, at
a Circuit Court of the United States, held at Richmond, in the month of May,
one thousand eight hundred, for the district of Virginia, whereat the said Samuel Chase presided, and before which a certain James Thompson Callender was
arraigned for a libel on John Adams, then President of the United States, the
said Samuel Chase, with intent to oppress and procure the conviction of the said
Callender, did overrule the objection of John Basset, one of the jury, who wished
to be excused from serving on the said trial because he had made uip his mind as
to the publication from which the words charged to be libelous in the indictment
were extracted; and the said Basset was accordingly sworn and did serve on the
said jury, by whose verdict the pri soner was subsequently convicted.
ARTICLE III. That, with intent to oppress and procure the conviction of the prisoner, the evidence of John Taylor, a material wnitness on behalf of the aforesaid
Callender, was not permitted by the said Samuel Chase to be given in, on pretense that the said witness could not prove the truth of the whole of one of the
charges contained in the indictmenit, although the said charge em7obraced mnore
than one fact.
ARTICLE IV.  That the conduct of the said Samuel Chase was nmiarked, during
the whole course of the said trial, by mianiifest injustice, partiality, and intemperance, viz:
Fiirst. In compelling the prisoner's counsel to reduce to wriltiing, and submit to
the inspection of the court, for their admission or rejection, all questions which
the said counsel meant to propound to the abi)ove inamed John Taylor, the wit'ess.
Second. In refusing to postpone the trial, altihough an afidaviit was regularly
filed, stating the absence of material witnesses oa b'lalf of the aeccused; and although it was manifest, that, with the utmost diligenee, the attendance of such
witnesses could not have been procured at that term.
Thing. In the use of unusual, rude, and contemptuous expressions towards the
prisosier's counsel; and in falsely insinuating that they wished to excite the
public fears and indignation, and to produce that insubordination to law to which
the conduct of the Judge did, at the same time, manifestly tend.
Fourth. In repeated and vexatious interruptions of the said counsel, on the part
of the said Judge, which at length iinduced them'to abanldon their cause and
their client, who was thereupon convicted and con(ldemned to file and imprisolnment.
Fifth. In an indecent solicitude nmanifestedl by the said Samuel Chase for the
conviction of the accused, unbecoming even a public prosecutor, but highly disgraceful to the character of a Judge, as it was subversive of justice.
ARTICLE V.  And whereas it is provided by the act of Congress, passed on the
24th day of September, 1789, entitled, "-al  act to establish the judicial courts of
the United States," that for any crime or otnuse against the United States, the
offender may be arrested, imprisoned. or bailed, agreeably to the usual mode of
process in the State where such oflfender may be found:  and whereas it is provided by the laws of Virginia, that upon presentment by ary gland jury of anl
offense not capital, the court shall order the Clerk to issue a summons against the
person or persons offending, to appear and answer such presentment at the next
court, yet the said Samuel Chase did, at the court aforesaid, award a capias
against the body of the said James Thompson Callender, indicted for an offense
not capital, whereupon the said Callender was arrested and committed to close
custody, contrary to law in that case made and provide(d.
ARTICLE VI. Anad whereas it is provided by the thirty-fourth section of the aforesaid act, entitled "an act to establish the judicial courts of the United States," that
the laws of the several States, except where the constitution, treaties, or statutes
of the United States shall otherwise require or provide, shall be regarded as the
rules of decision in trials at common law, ii the courts of the UCnited States, in
cases where they apply; and whereas, by the lawvs of Virginia, it is provided
that, in cases slot capital, the offender shall not be leld to answer any present 
MR. IHARDINeS ARGUMENT.
ment of a grand jury until the court next succeeding that during which such
presentment shall have been made, yet the said Samuel Chase, with intent to
oppress and procure the conviction of the said James Thompson Callender, did,
at the court aforesaid, rule and adjudge the said Callender to trial, during the
term at which he, the said Callender, was presented and indicted, contrary to
law in that case made and provided.
ARTICLE VII. That, at a Circuit Court of the United States for the district of Delaware, held at Newcastle, in the month of June, one thousand eight hundred,
whereat the said Samuel Chase presided, the said Samuel Chase, disregarding the
duties of his office, did descend from the dignity of a Judge, and stoop to the level
of an informer, by refusing to discharge the grand jury, although entreated by
several of the said jury so to do; and after the said grand jury had regularly declared, through their foreman, that they had found no bills of indictment, nor
had any presentments to make, by observing to the said grand jury, that he, the
said Samuel Chase, understood "that a highly seditious temper had manifested
itself in the State of Delaware, among a certain class of people, particularly in
Newcastle county, and more especially in the town of Wilmington, where lived
a most seditious printer, unrestrained by any principle of virtue, and regardless
of social order; that the name of this printer was "-but checking himself, as if
sensible of the indecorum he was committing, added, "that it might be assuming
too much to mention the name of this person, but it becomes your duty, gentlemen, to inquire diligently into this matter," or words to that effect; and that,
with intention to procure the prosecution of the printer in question, the said SamuLel Chase did, moreover, authoritatively enjoin on the District Attorney of the
United States the necessity of procuring a file of the papers to which he alluded,
(and which were understood to be those published under the title of' Mirror of
the Times and General Advertiser,") and, by a strict examination of them, to find
some passage nwhich might furnish the ground-work of a prosecution against the
printer of the said paper; thereby degrading his high judicial functions, and
tending to impair the public confidence in, and respect for, the tribunals of justice, so essential to the general welfare.
ARTICLE VIII.  And wher eas mutual respect and confidence between the government of the UInlited States and those of the individual States, and between the
people and those governments, respectively, are highly conducive to that public
harmony, without which there can be no public happiness, yet the said Samuel
Chase, disregarding the duties and dignity of his judicial character, did, at a
Circuit Court for the district of Maryland, held at Baltimore, in the month of
Mlay, one thousand eight hundred and three, pervert his official right and duty
to address the grand jury then and there assembled, on the matters coming within
the province of the said jur y, for the purpose of delivering to the said grand jury
an intemperate and inflammratory political harangue, with intent to excite the
fears and resentment of the said grand jury, and of the good people of Maryland,
against their State goverinment and constitution, a conduct highly censurable in
any, but peculiarly indecent and unbecoming in a Judge of the Supreme Court
of the UInited States; and mioreover that the said Samuel Chase, then and there,
under pretense of exercising his judicial right to address the said grand jury, as
aforesaid, did, in a manner highly unwarrantable, endeavor to excite the odium
of the said grand jury, and of the good people of MIaryland, against the governmnent of the United States, by delivering opinions, which, even if the judicial
authority were competent to their expression, on a suitable occasion and in a
proper manner, were at that time, and as delivered by him, highly indecent,
extra-judicial, and tending to prostitute the high judicial character with which
he was invested, to the low purpose of an electioneering partizan.
The precedents which I have read, show the jurisdiction, as claimed
by the House of Representatives of the United States, in cases of impeachment. They also afford us much light as to the rights and duties
of the court, as well as those of attorneys, jurors, and others. To my
mind there was ample evidence to justify the conviction of Judge Chase;
but I shall not now undertake to sustain this opinion. To do so, would
necessarily incur the reading of the evidence, and a full commentary of
the case. But it cannot be admitted that, because he was not convicted
upon these charges, that the accused in this case cannot be convicted
here on similar charges. Many men are indicted for, and convicted of
murder, whilst, upon like charges and like evidence, others are acquitted.
835 
HIGH COURT OF IMPEACHMENT.
I propose now to show, by precedent, what jurisdiction our own House
of Representatives have claimed. I read from the Legislative Journals,
1826, page 352, articles of impeachment against Judge Thomas, as follows:
ARTICLE I. That, unmindful of the solemn duties of his office, and contrary
to the sacred obligation by which he stood bound to discharge them faithfully
and impartially, the said Richard S. Thomas, in the month of April, in the year
one thousand eight hundred and twenty-three, at the county of Cape Girardeau,
at a Circuit Court holden for the said county, whereat the said Richard S. Thomas
presided, did, in his judicial capacity, conduct himself in a manner highly arbitrary, oppressive, and unjust, and against the known and established law of the
land:
First. In refusing to recognize John Juden, junior, Clerk of the said Circuit
Court for Cape Girardeau county, as Clerk of the said court, and attempting to
deprive him of his said office, under pretense that the said office was vacated
by the amendments to the constitution of this State, made in the year 1822;
whereas the said Richard S. Thomas was ill truth actuated by the corrupt desire
of removing the said John Juden, in order to confer the said office upon his own
son Claiborne S. Thomas, and although the said Richard S. Thomas, in his official capacity, hath always recognized, as legal, the acts done by the Clerks of
the other circuits in the Fourth Judicial District since the passage of the said
amendments to the constitution, he, the said Richard S. Thomas, well knowing
that the said Clerks derived their authority from commissions issued to them
previous to the passage of the said amendments, and fromn none other.
Second. In declaring, in pursuance of the aforesaid corrupt design, the said
Claiborne S. Thomas to be Clerk of the aforesaid Circuit Court, and as such entitled to the possession of the papers appertaining to the said office of Clerk, and
in demanding the same to be delivered up to the said Claiborne S. Thomas;
whereas the said Juden was then in fact the Clerk of the said court, appointed
and commissioned according to law.
Third. In ordering upon the first day of the said April term the said court to
be adjourned until court in course, and in refilsing to transact the business of
the said court under the pretense that the office of the said Juden had been
vacated as aforesaid, that he had refused to deliver up to the said Claiborne S.
Thomas the records of the said court, anrid that the question, who was the Clerk,
must be determined by the Supreme Court of this State, whereas, in fact, the
said Juden was the Clerk of the said court, and entitled to the custody of the
said records, and the said Richard S. Thomas, Judge as aforesaid, had full power
and authority to compel, by due process, the said Juden to deliver up the said
records, if, in fact, his said office had been vacated by law.
ARTICLE II. That, prompted by the aforesaid corrupt motive in favor of his
said son, the said Richard S. Thomas, in the vacation succeeding the said April
term, persisted in refusing to acknowledge the said Juden as Clerk of the said
court, by nieans whereof, and of the above menetioned illegal conduct of the said
Judge, at the said April term, the said Juden was afterwards to wit, in the
month of June, in the said year, compelled to resign his said office of Clerk.
ARTICLE III.  And whereas, a certain Charles G. Ellis did, on the nineteenth
day of April, in the year 1823, obtain, before David Armour, a Justice of the
Peace within and for the county of Cape Girardeau, a judgment against the
said Claiborne S. Thomas, son of the said Richard S. Thomas, for the sum of
fifty-seven dollars and thirty-six cents, together with the costs of suit, and the
said Claiborne prayed for an appeal, and was desirous of removing the said suit
to the Circuit Court for the said county, whereof the said Richard S. Thomas
was Judge; yet the said Richard S. Thomas, corruptly intending to protect the
said Claiborne, and deprive the said Ellis of his right to a speedy and impartial
administration of justice, did conduct himself, in his official capacity, in a manner highly partial, oppressive, and unjust:
First. In becoming security in an appeal bond for his said son, in the said suit,
upon the 22nd day of April, in the said year, and thereby voluntarily acquiring
an interest in a cause about to be removed to the said judicial tribunal over
which he, the said Richard S. Thomas, then presided.
Second. In refusing, at the August term, in the year 1823, of the Circuit Court
of the county of Cape Girardeau, to which the said suit had been removed by
appeal, to try the same, and ordering a change of venue therein, to the county
of St. Francois, in the Third Judicial Circuit, although no application, accord
336 
MR. iARD)IN'S ARGUMENT.
ing to law, had been made therefor, by either of the parties, nor did the said
parties consent thereto.
Third. In refusing, at the last August term of the said court, wherein the said
cause was then depending, it having been sent back by the Judge of the said
Third Judicial Circuit, for want of jurisdiction to try the same, and in ordering
the same to be continued, because his said son was interested therein, although
the said Ellis had neither applied for, nor consented to, the said continuance.
Fouarth. In refusing, at the last August and December terms of the said court,.
to try said cause, and ordering the same to be continued, for the reason above
assigned, although the said Ellis neither applied for, nor assented to, the said
continuances.
AP.TICLE IV. And whereas the said Richard S. Thomas did, in the month of
April, 1824, issue a warrant directed to the Sheriff of Cape Girardeau county,
commanding him to take the body of Ezekiel Fenwick, charged with the murder of William R. Bellamy, and the said Fenwick could not be found by the said
Sheriff in obedience to the said warrant; yet the said Richard S. Thomas, unminldfill of his duties, and to the great scandal of public justice, did agree with
John D. Cook, counsel of the said Fenwick, that if the said Fenwick would surrender himself upon the said warrant, no further testimony should be heard,
and that the said Fenwick should be admitted to bail upon the charge aforesaid;
that the said Fenwick, relying upon the said promise, did surrender himself to
the said Judge uponl the 24th day of the said month, at the said county; whereupon the Judge inquired if there was no testimony present, and being answered
in the negative, discharged the said Fenwick on bail, declaring it was not his
business t,4 procure the attendance of witnesses, although he well knewv that several witnesses acquainted with the circumstances of the said supposed murder,
resided in the.adjoining county of Perry, at a distance not exceeding thirty
miles, and their attendance could be procured within a short period of time.
Judge Thomas was convicted on all the charges, and removed from
office. These precedents establish clearly, that for any character of of
-tfenise, showing corruption, oppression, partiality, or other abuse of authority, the Judge may be impeached therefor.  And besides, a close analogy
may be observed between the charges now under consideration and those
which have been read.
It has been claimed here, MIr. President, that great latitude of discretion is aTlowed to a Judge, and that many of the offenses charged in the
articles of impeachment before the Senate were matters of judicial discretion, and although however wrong the motive, still the act cannot be
Questioned here.  We aver that there is no discretion left to the Judge
that the common law and practice of courts declare his whole duty,-define his powers and jurisdiction in almost every particular.  Discretion
in a Judge has ever been reprehended by Judges themselves, and by the
people. Their duty is to pursue the law. They cannot, more than anyother officer, depart from it. Lord Mansfield said:
But discretion, when applied to a court of justice, means sound discretion,
gulided by law.  It must be governed by rule, not by humor.  It must not be
arbitrary, vague, and fanciful, but legal and regular.-Case of Johni Wilkes, HIow.
State Trials, p. 1089.
The discretion of the Judge, (says Mr. Gibbon, very truly,) is the first engine
of tyranny.  To this I will add the memorable words used by Lord Camndei, in
the case of Ilaidson and Kersey, in the Court of Common Pleas, when he was
Chief Justice of that court: "The discretion of a Judge is the law of tyrants; it
is always unknown; it is different in different men. It is casual, and depends
upon constitution, temper, passion.  In the best it is oftentimes caprice; in the
worst it is every vice, folly, and passion, to which human  nature is liable."
8 Ibid. p. 56, note.
It is, perhaps, a popular opinion, that there must be some special consideration to make the act corrupt.  This is not the case, however.   Corruption embraces bribery, but has a more general signification. It is
defined by Mir. Bouvier, in his Law Dictionary, to be a wrongful act.
22
337 
HIGH COURT OF IMPEACHMENT.
done with the intention to give some advantage inconsistent with official
duty and the rights of others.
Ordinarily, malice is understood to be wickedness, depravity, a heart
bent on mischief. But this is not its legal signification. It means, in
its legal sense, a wrongful act, done knowingly, without just cause or
excuse.
This has been classed as a criminal case, and much argument used to
give it that character. There is nothing in the nature of the case to
make it such.  Neither the articles of impeachment, nor answer, are
formally drawn. No capias issued for the body of the accused; nor has
any jury been sworn to try the facts adduced in evidence. The accused
is only present at his pleasure; there is no law requiring his presence, as
in criminal cases. Besides, if convicted, there is no corporal punishment,
no fine, no imprisonment. There is, therefore, no analogy between this
and a criminal case. In the case of Judge Pickering, the articles of impeachment do not so much as charge him with having acted with corrupt
intent. They allege that he is impeached for high crimnes and misdemeanors, and the specifications set forth the facts. That is all; that is
sufficient; and it is for the court, after hearing the evidence, to say
whether the charges contain proper grounds for impeachment, and
whether the evidence would sustain them.
With these remarks, I now propose to enter upon the consideration
of most of the articles.
The first article charges respondent with oppression, corruption, and
partiality in his conduct towards Judge Eaker and his attorneys. The
members of the Senate will remember that a writ of man(lamus was
issued by Judge Jackson against Jonas Eaker, as Judge of the County
Court, returnable on the first day of the May term of the Stoddard
Circuit Court-being the 17th day of May.  The Sheriff served the
writ by delivering a copy, and made his return accordingly. On the20th
day of Miay the case was called, and Messrs. Kitchen and Phlelan, attorneys for Eaker. informed the court that as the writ had been served
by the delivery of a copy, there had been no legal service.  Thie Judge
refused to hear them, stating that it was not a case for counsel. They
then, as friends to the court, desired to present the facts, which was
peremptorily refused, and they ordered to shut their mouths and take
their seats. In the meantime, the Sheriff; with the writ that had been
returned into court, went in search of Judge Eaker, and on finding
him, offered it to him, which he refused to receive. The Sheriff re ported these facts to Judge Jackson, who forthwith ordered an attach ment to issue against Eaker, who was arrested and detained in custody
for an hour, and released upon his promise to make his return to the
copy on the next day. The conduct of the Judge towards the attorneys
was stormy and offensive.  He refused to hear them either as attorneys
for Eaker, or as friends of the court, but compelled them to sit down
and be silent. The writ run out on the 17th May; after that date it
could not reissue. The Judge knew both from the return endorsed on
the writ, as well as by special information of the attorneys, that the
writ in the first instance was served by the delivery of a copy. The
writ cannot be served by copy. (Mo. Rep., 159.) An attachment will not
issue where there has not been proper personal service. (Tapping on
Mandamus, p. 456-7.) The evidence sustains the entire charge, and I
trust it may not be esteemed a small matter for a Judge to imprison,
without authority of law, a citizen and an officer of the State.  The
principle involved is the pure administration of justice, and the rights
and liberties of the people; a principle too momentous not to attract
the attention of this Court. Why, sir, the brightest pages of our his tory are but records of the blood and treasure exhausted by our coun
338 
MR. HARDIN'S ARGUMENT.
try in resisting the unlawful imprisonment of our citizens by a foreign
nation. Indeed, we remember but recently the universal acclaim that
went up from the hearts of our countrymen, at the magnanimous and
courageous conduct exhibited by a distinguished officer of our naval
service, in successfully resisting an hour's unlawful imprisonment of a
person whose citizenship was but imperfectly declared. That which
has been so successfully maintained against foreign nations, we trust is,
and ever will be, maintained between our own citizens. It is the prin  ciple, the due administration of law, that we plead for. The Judge who
will knowingly violate the law in one instance, will at his pleasure do so
in a dozen. If he would wrongfully imprison one, the same tyrannical
disposition and ungovernable temper will compel the imprisonment or
the many. The hour's loss of time is nothing; but the infraction ot
law, the violation of the sacred liberty of the subject, is all.  The re  spondent pleads not ignorance of his duty; nor is there any pretense
that such was the case. The evidence fully convicts him of a wanton
violation of every duty and principle of law in relation to the trial of
the cause, and it is for this Senate to approve or reprobate his conduct.
The evidence adduced in support of the second article is, that during
the pendency of an action of ejectment of Moore against Walker, in
the Stoddard Circuit Court, for the recovery of the possession of cer  tain lots in Bloomfield, the respondent, Judge of such court, advised
Walker not to compromise the case with Moore, and gave as a reason
that the field notes of the town were lost, and that Moore could not re cover in the action. Walker immediately made this advice known to
his friends, and it reached the ears of AiMoore, who soon thereafter ap plied for, and obtained, a change of venue of his case from the circuit,
because of the prejudice of respondent against him.  Moore had deter mined on making this application before this information carne to his
hearing.  Moore and respondent were not on friendly terms.  This is
substantially the evidence. Is it competent for a Judge to give advice
in private to parties litigant in his court? Is it wrong, or right? Is it
probable that he could discharge impartially his official duties, and act
thus? The Judges who are to pass sentence ought not to deliver their
opinions before the case comes immediately before them, because they
will not fail to support those opinions which they have prematurely
exposed. (1 Chitty's Crim. Law.) There is a statute which prohibits a
Judge from being counsellor in any cause. (Rev. Stat., p. 541, sec. 58.)
And it is generally admitted as a principle of law, that no Judge shall
give, extrajudicially. opinions in a cause pending in his court, or which
might probably come before him. The respondent in this instance has
violated a most sacred principle of law; degraded the dignity of his
position, by encouraging the prosecution of law suits before him, when
the parties were in the way of amicable adjustment of their differences.
Instead of cultivating, as it were, impartiality, he is found encouraging
the growth of further animosity in society, and all perhaps to gratify a
personal malice against Moore. To approve his conduct by an acquittal, will be to arm him afresh for those secret and private thrusts, which
he seems to be so capable of making against parties in his court who
are found to be sbjects of his enmity and hatred.
Article three charges respondent with misdemeanor in office in
directing a change of venue from Wayne to Mississippi county, in the
Tenth Judicial Circuit. The application was made by Mr. Fox, attorney for plaintiff, in the case of Limbarger against Powers. The cause
alleged was prejudice of the Judge against plaintiff.  Mr. Fox and the
Judge were not on amicable terms. The parties and witnesses lived in
the same neighborhood-in the northern part of Wayne county-and
quite as convenient to the county seats of Bollinger and Iron counties,
339 
HIGH C)URT OF IMPEACHMENT.
as to that of Wayne.  The county seat of Mississippi is about twentyfive miles from the county seat of Wayne, and on the east side of the
swamp, which is always difficult to cross, but quite impassable during
the rainy season of the year.  When the waters are up, this swamp is
crossed by means of various kinds of craft. attended with expense;
when dry, it is crossed on horseback; but when the waters have measurably subsided, they are too shallow for craft, and too deep for crossing on horseback.  Near three days are occupied generally in crossing
in craft. Around the swamp, by the usual traveled route, it is some
two hundred miles.  The attorneys in the case do not attend court in
Mississippi county.  They agreed that the case should go to the county
of Madison or Iron, because of the convenience of either to them and
the parties and witnesses. To travel by land from where the parties
lived to Mississippi county, a person would  have to pass through the
counties of Bollinger, Scott, and Cape Girardeau. On the next day
after the order was made for the removal of the cause to Mississippi
county, Mr. Fox asked the court to rescind the order, alleging as a reason that he would rather have the case tried there than that it should
go to Mississippi county.  The Judge replied that if he would not take
it as a personal offense, he would fine him for contempt.  Upon this
state of facts, we claim that respondent was guilty of oppression and
misconduct.  The statutory rule is, (Rev. Code, 1855, p. 1559, sec. 4,)
that the case should be removed to the county outside of the circuit
most convenient to Powers, the adverse party.  This was not done;
nor was the convenience of the attorneys or witnesses consulted. But,
disregarding the letter and spirit of the law, and that just rule of practice so often pursued by upright and impartial Judges, that of looking
as far as possible to the convenience of counsel and witnesses, this respondent removed the case to a court beyond the swamp, with the
apparent purpose of punishing Judge Uox and otlhers for their temerity
in making the application.  No justification or excuse for this conduct
can be found in the evidence. That he was operated upon by some
motive of evil intent, may be seen in the unfriendly relations existing
between him and Judge Fox, and in the harsh and unbecoming language used towards the counsel in relation to the application.
Article six charges respondent with gross an(l malicious oppression
and misconduct in publicly charging William O. Plelan, Esq., whilst
court was in session, with the disgraceful and criminal act of tampering
with the grand jury. The facts seem to be that Mr. Phelan, an attorney in the cause, was in the act of submitting an argument to the jury
empanneled in the case of Gibson against Dunn. Without any provocation on the part of Phelan whatever, respondent made the declaration.
Phelan undertook to deny, and exculpate himself from, the charge.
Respondent peremptorily required him to shut his mouth and sit down.
The manner of respondent was angry and severe. Phelan was not per mitted at any time to deny the charge, or vindicate himself against it.
The respondent has not undertaken before this Senate to aver and sub stantiate the truth of his accusation; nor is there any pretense that he
could do so.  Instead of cultivating order and harmony in his court,
and so demeaning himself as to win the love and respect of the bar,
the respondent himself, whilst occupying the bench, affords Ample cause
for personal violence and breaches of the peace, by villifying and utter ing foul slanders against those whom he may regard as his enemies,  In
law, he is a conservator of the peace; in practice, what? a relentless
persecutor of those who have not his friendship. As he does not excuse
or justify his conduct, is there any one so indifferent to the harmony
and good order of our courts of justice as to find no words of condem nation for such acts? Will not this Senate reprobate severely such
340 
MR. HARDIN'S ARGUMENT.
tyrannical and abusive conduct towards attorneys found to be quiet
and respectful in deportment, and faithful in the discharge of duty.
Not to do so, would in effect place those officers of our courts beyond
the pale of protection, and license a malignant Judge to inflict upon
them every character of tyranny, abuse, and oppression that his low and
grovelling nature might originate.
Article seven contains a kindred charge to the last. It is, that whilst
the Ripley Circuit Court was in session, the respondent, without any
provocation, but in a spirit of vindictive persecution, charged Judge Fox,
an attorney of the court, with being guilty of the crime of perjury, or
subornation of pe;rjury, and of lyiyng, and causing his client to lie. The gist
of the evidence is, that the client had sworn to the original, and Judge
Fox to the amended answer. Court was in session, the respondent
occupying the bench; Fox was quietly engaged in writing at a table
within the bar. Holding up to view one of the answers, respondent
asked Fox whose writing that was.  The reply was, I can't say till I see
it.  Respondent then said you ]at'e sz'orn to a lie, or caused your client to
sOveaCa to Oie.  The words proven to have been used by respondent are
not thle exact words set forth ili the article.  In impeachment cases this
is not necessary.  Lest it may be so contended, I will read an authority.
In the case of De Sacheverell, impeached for high crimes and misdemeanors, and convicted by the House of Lords, the defendant moved
in arrest of judgment upon the ground.of a variance between the proof
and charge. After argument, the Lord Chancellor delivered the opinion
of the House of Lords, as follows:
That by the law and usage of parliament, in prosecutions by impeachment
for high crimes and misdemeanors, by writiing or speaking, the particular words
supposed to be criminal are not necessary to be expressed in such impeachments.-15 l-How. State Trials, p. 473.
The proof is ample and sustains the charge. The words proven are
the import and substance of what was said by respondent on that occasion.  If there was a variance between the two answers, it was the duty
of the adverse party to have mnoved the objection, and made the fact
apparent. If, however, it was proper for the Judge to announce the
variance, it could and ought to have been done in very different language. The use of the very offensive and slanderous words employed
would lead us to believe that he was moved to make the charge by no
other feelings than those of malice and revenge.  Public and stinging
exposure of Judge Fox wag doubtless the sole object, and not that the
ends of justice required it. To approve of such malicious persecution
and oppression in our courts, is to give license to the exhibition of the
worst passions, and allow no protection to character or good conduct.
Was there any occasion for such language? Will any state of facts
justify it? I answer no; and if not, is the character of Judge Fox to
be thus publicly maligned, and the Judge be held to no account? If
so, then our courts will become, instead of sanctuaries of justice and
forums for the highest dignity of character and the liveliest expression
of personal and professional friendship, places where slanders and assaults, vituperation and calumny, will hold sway.
In article eight the respondent is charged with partial and highly unbecoming conduct at the April term, 8lS58, of the Oregon Circuit Court.
An officer, in attempting to arrest one DePriest, whilst disturbing the
peace of a family, was resisted by him. A true bill was returned
against DePriest for each offense.  He was convicted of one offense in
the forenoon of the day of trial. During the recess of court, respondent
advised an attorney, M-r. Odell, that the two indictments were for the
same offense, and that DePriest would be acquitted on the charge yet
341 
HIIIGII COURT OF IMPEACHMENT.
to try upon a plea of former conviction; and further advised him to
hunt up DePriest and take the case upon a contingent fee.  Mr. Odell
was employed as advised, and moved to quash the indictment, giving
as a reason the former conviction. Respondent overruled the motion
to quash, and advised Mr. Odell of his error, and that a plea in bar was
the proper practice.  A nol. pros. was thereupon entered by the Circuit
Attorney, and the fee paid by DePriest. Was the conduct of respondent
proper and right?  Did he not prejudge the case? and that, too, wrongfully. Hle gave his opinion, and the case resulted as he advised. The
evidence fully sustains the charge; and upon principle it does not seem
admissible that a Judge should be admitted with impunity to thus express his opinions, and exhibit partiality.
Respondent is charged in article ten with having illegally and corruptly discharged from the custody of the Deputy Sheriff; one John R.
Main.  He was in custody of this officer by virtue of a writ to commit
him to jail.  No examination, if any, had been given by the Justice
with the mittimus.  Main presented to respondent a petition to be discharged under the habeas corpus act. Respondent denied the sufficiency of the petition, and suggested certain amendments, which were
interlined in the petition. Tlhe evidence taken before the magistrate,
if any, was not presented; nor was this officer called; nor was any rule
made upon him to produce the evidence.  Respondent directed the release of Main, and gave as his reason that the Justice did not insert in
the commitment that he had good cause to believe that Mlain was guilty
of the offense charged. Upon examination, I find that this warrant
follows strictly the forms that have been in use since this became a
State.  Nor have I discovered by any authority that such a requisition
has ever been, or should be, used in such warrant. The reason given, is,
therefore, a gratuity, and intended, doubtless, to cover a worse one. iHe
fixed his own justification on that particular reason.  Its sufficiency is
not admitted by any usage or authority known to me. Our statutes
provide that if the commitment be informal, insufficient, or irregular,
the prisoner shall give bail, if it appear from the examination taken, or,
if there be none, from the testimony of the magistrate, that there is
sufficient legal cause of commitment. As the warrant conforms to the
forms in use, I hold it to be formal, sufficient, and regular. If in this I
am in error, respondent should have ascertained from the legal sources
of information, whether there was a sufficient legal cause of commitmenrt.  Ile made no rule for the presence of either.  It was his duty to
have done so.  In not doing so, he screened the offender from punishment which perhaps justly awaited him.  We  claim that the offense
was clearly and specifically set forth in the warrant. Where that is the
case, the law is that the prisoner shall not, in the absence of the evidence, be discharged.  If this latter position be true, respondent grievously abused his authority in discharging the prisoner because no evidence was adduced.  If not true, our other position mustbe true.  The
warrant was either informal, insufficient, and irregular, or vice versa; if
the latter, as there was no evidence adduced, the prisoner should have
been bailed or remanded; if the former, he was guilty of a misdemeanor in not requiring the production of the evidence.  He suggested,
and permitted to be corrected, deficiencies in the petition; but, although
his prescribed duty, he had no care for the State. At the same time,
upon alike proceeding, respondent discharged Russell, another offender
against the laws.  Although different in fact from Main's case, respondent's omission of duty was quite as obvious. As respondent has been
for several years a Judge, and long time a practitioner, I will not presume so much as to suppose that he was ignorant of the law, or his duty,
in relation to these cases. Not being ignorant, he must therefore have
342 
MR. HARDIN' S ARGUMENT.
knowingly inflicted upon society a grievous wrong in refusing to enforce
the laws made for its protection. In the articles of impeachment
against Judge Thomas, he was charged among other things with having
discharged a prisoner, alleging that it was not his duty to hunt up the
witnesses, well knowing that there were witnesses in an adjoining county who, if present, would establish the charge. Upon this he was convicted. Is there a shade of difference between the conduct of Judge
Thomas and that of respondent in the Russell case? Ile well knew
the offense charged against Russell; that he had had an examination
before a Justice; that he was not acquitted, but held for further trial;
that he had been granted the customary indulgence to get bail; that
though the commitment was not in the hands of the Constable when
his return was made to the writ of habeas corpus, yet it came to the
hands of, and was presented to, respondent, before the prisoner was discharged. Of course, Russell was in the custody of the Constable under
the original warrant, till a commitment came to hand.  It is neither the
law, nor the practice, that the issuance of the commitment should follow the announcement of the judgment of the Justice. The court said
in the case of Still vs. Walls, 7 East, 536:
It never could be doubted but that a magistrate might, by parol, order an
offender to be detained in custody until he could make out his warrant of cormmitment, and this court were in the constant habit of directing commitments
verbally, which were afterwards recorded.
It is also the constant practice, doubtless, of the magistrates and
courts, to grant-the accused time to obtain bail. The Constable was allowed to amend his return to the writ of habeas corpus, after it was
presented to respondent. Should he not have directed a further
amendment when the commitment came to the Constable?  To have
done so, would have thwarted his purpose to discharge Russell. in presenting the commitment to respondent, the Constable in effect claimed
the custody of Russell under it, and also that he ought not to be discharged. To breakl the force of this, respondent warned him, " if you
don't mind, you will contradict your return."  This alarmed him, as his
return was that he held Russell under a verbal order of the Justice, and
he abandoned the case to such rulings as respondent should make.
Again, Solomon G. Kitchen, at the special instance of the sole Judge
of the County Court of Stoddard county, came to this place for certified
lists of the swamp lands of that county. The fees alone were sixty-five
dollars. Upon his return the court audited his claim for those fees and
services at about one hundred and seventy dollars.   These are the
facts; yet respondent charged the grand jury as alleged in article eleven.
WVere the facts as represented by respondent, still it would not be allowable, by any authority or practice known to me, for him in his charge
to the grand jury to bias the public mind against the supposed offender.
It is the duty of the Judge to instruct the grand jury as to tlveir powers and duties, limited, according to practice, to a brief synopsis of the
statutory provisions. To attempt to fix public prejudice against an unoffending citizen, by presenting a false statement of facts, and by using
the influence of position, is too truly a flagrant breach of the trust reposed in a Judge. You will remember from the articles I read to you
this morning against Judge Chase, that he was impeached for a like
breach of duty. This we urge as a prominent instance of the reprobation that such an abuse of authority has received at the hands of an intelligent assembly. It is a fair deduction to assert that such charges to
grand juries are violative of the common law as administered in the
United States, and of the practice as known to the courts thereof, since
the House of Representatives of the United States, made up as it was
343 
HIIGH COURT OF IMPEACHMENT.
and is from every section of the Union, voted the impeachment against
Judge Chase. That vote is the evidence of their opinion. But the
subject of Judge Chase's charge was a total stranger, against whom he
could have had no personal malice.  The present is the reverse of that.
Respondent regarded Mr. Kitchen as his personal enemy at the time,
made so, as Mr. Kitchen testifies, by the harsh and unfeeling conduct
of respondent whilst on the bench towards him. Out of court they had
had no issue, not an unkind word; in court, Mr. Kitchen had been re peatedly the subject of his tyranny, abuse, and malignant remarks. Nor
does it appear from the evidence that Mr. Kitchen had ever given him
cause, or been other than respectful and courteous. As the facts did
not justify, nor the law nor the practice in the courts authorize, the
character of the charge to the grand jury, his course must be traced to
low, personal malice. and relentless persecution. This is further con firmed by the testimony of Mr. Ringer, who represents that, ill the fall of
1857, being about one year before the charge was given to the grand jury,
respondent sought him out, inquired into his accounts with Kitchen,
then Court House Commissioner, and advised him to sue and hold Mr.
Kitchen personally responsible for the unpaid balance due him on the
contract to build the court house; and further advised Mr. Ringer
that he could recover. Such a suit would have to be instituted in the
Circuit Court of the county of Stoddard. as both Ringer and Kitchen
reside there; of that court respondent was and is Judge.  There is
further evidence of his persevering pursuit of Kitchen. Doubting
whether his public charge had or would influence the grand jury to indict Mr. Kitchen, respondent, transcending every official duty,-dishonoring the ermine of his office,-appeared before the grand jury in
their retirement, and repeated his public charge, with this, that Mr.
Kitchen was the person referred to. These are the facts, substantially.
They convict respondent of sacrificing the sacred character of his position to destroy the character and fortunes of his neighbor. Such conduct in a private individual would be treated with loathing and contempt.  What words will suitably characterize it, when found in a
Judge?  I have them not.  Protection against such vile persecution is
due the citizen. May the judgment of the Senate afbford it. Such a
judgment would receive the applause of our people.
Article fifteen charges respondent with willful and corrupt abuse of
authority in the case of Moore against Eldridge, administrator, tried at
the Ripley Circuit Court. The case was called for trial, a jury ordered,
and the court took a recess for dinner. The case had, for some reason,
excited much attention and discussion among  the people.   During
recess, respondent fell in with a few persons, among them was Mr.
Kittreli, a very intelligent witness, who were speculating as to the final
result of the case.  Mr. Kittrell brought the subject of their conversation to the attention of respondent, who expressed the opinion that
Moore ought not to recover of Eldridge.  Mr. Kittrell contoverted the
opinion expressed, and he and respondent had some discussion about
it. We maintain it as an indisputable principle of law, that a Judge
should not declare his mind as to any case pending, or which might
thereafter come before him. To do so obliges him for the sake of consistency to maintain them. Upright and honorable Judges will not and
do not do so.  Whenever done it is a flagrant abuse of authority, and
evidence of a partizan mind. Before such a Judge the rights of parties
are uncertain, and dependent more on his will than the law. Often,
yea, too often, does the least intimation, either of word or act, from
the Judge, determine the mind of the jury. In this particular instance his conduct was improper in the highest degree, as the officer was
then collecting a jury from the people, of whom respondent's auditory
344 
MR. IIARDIN'S ARGUMENT.
was a part, and for aught we know the jury may have been made up
in part from that auditory. Can such unbecoming conduct and abuse
of authority pass unrebuked by this Senate?  But, again:  At the trial
Mr. Kittrell testified only as to the execution of an instrument of writing offered in evidence.  The verdict of the jury was for Eldridge, and
Mloore sought a review of his case by the  Supreme Court.  The bill of
exceptions was prepared, and the counsel for both parties informed respondent that it embraced all the evidence, at least satisfactorily so.
Respondent refused to attest the bill of exceptions, because it did not
set forth that Kiittrell testified before the jury that there was an erasure
or alteration of tlhe date of the instrument.  The attorneys denied that
Kittrell had made such a statement.   ie was called, and statedto respondent that he did not make that statement, but only testified as to
the execution.  Respondent asked himn then if there had not been an
erasure or alteration of the date.  Witness said he did not know;  the
writing was as he had always seen it. Respondent thereupon inserted
the controverted statement in the bill of exceptions, in brackets, as a
part of the testimony of Kittrell, and signed it. M{essrs. Kitchen, Bedford, and Kittrell have testified before this Senate that Kittrell did not
make the statement alleged: yet it is a part of the record of that case
that he did, made so by respondent in the face of their denials.  What
more glaring abuse of authority could be desired to support this impeachmient? The corrupt motive is to be found in his favoring the
cause of Eldridge.  To effect this he expressed his opinions for him
publicly and without reserve. Judgment being for Eldridge, hlie shaped
the record, in violation of every principle of justice, to secure its affirmation.  There is no dispute as the facts; nor can there be any as to the
motive that operated upon respondent.  Can any intelligent, virtuous
mind hesitate to remove a Judge whose conduct is so flagrantly subversive of the rights of the people?  I trust not, and believe not.
Article sixteen charges respondent with gross oppression, partiality,
and abuse of authority, at the trial of Berry against Griffie, in the Stoddard Circuit Court.  The principal facts are, that at the trial, the respondent, as Judge, made some remarks, in the presence and hearing
of the jury, in relation to the merits of the case, that Mr. Tyrell, attorney for defendant, deemed prejudicial to the rights of his client, and at
the time "objected to an instruction from the court in that manner
and form, as improper and unfair."'  The jury rendered a verdict for
plaintiff for more than was prayed for in his petition. Defendant, by
his attorney, moved for a new trial on the following reasons:
First, on the trial plaintiff totally failed to prove any cause of action alleged in
the petition. Second, the jury were misled by testimony to prove who was thb
owner of the land in question at the time of trial. Third, the testimony introduced
which tended to prove who was the owner of the land in question at the time of trial
should have been excluded. Fourth, the jury were misled by the opinion of the court,
that defendant had no interest susceptible of conveyance in the land mentioned in
the petition. Fifth, plaintiff on the trial proved no damages. Sixth, on the trial
defendant proved performance of the contract alleged in petition. Seventh, the
verdict is greater than the testimony warrants.
This motion was overruled and exceptions saved. Defendant also
moved to arrest the judgment on these reasons:
First, the verdict is inconsistent with the plaintiff's demand of relief, in that it is
greater in amount than the relief demanded. Second, the jury gave damages for
an item in plaintiff's account, which the plaintiff was not allowed to prove, to wit:
the item of rails, for which plaintiff claimed one hundred dollars.
This motion was also overruled and exceptions saved. Subsequent
to these rulings of the court, plaintiff, on leave, entered a remitter.
345 
3IIGH COURT OF IMPEACHMENT.
Defendant tendered his bill of exceptions for the signature of respondent, who refused to sign it unless the causes set forth in the motion for
a new trial, and the cause in the motion in arrest, were stricken out.
Not being able to obtain respondent's attestation without, it was done.
Respondent refused to and did not attest the evidence at all, giving as
a reason that he did not know what the evidence was, because of the
noise that prevailed in the court room at the time it was delivered. Mr.
Bedford, attorney for plaintiff, concurred with Mr. Tyrell that the whole
evidence was truly written. Respondent still peremptorily refused to
attest the evidence, and the case was taken to the Supreme Court without it.  Either practice prevails in that circuit, at the pleasure of the
party appealing, to embrace the evidence in the bill of exceptions, or to
have a separate attestation for the evidence unexcepted to. These, I
believe, are the main facts, substantially. We aver that respondent
endeavored corruptly to prevent defendant from getting this cause fairly
before the Supreme Court. We aver that he favored the cause of Berry,
and used his influence with the jury for his success. This position is
supported by his verbal remarks and comments to them. Having once
committed his feelings, his purpose was to work out favorably the final
result. The verdict, though for a larger amount than claimed by the
petition, was allowed to stand.  He refused to hear affidavits that the
jury did not found their verdict solely upon the evidence, but were influenced by the opinions he expressed.  Such a refusal is but evidence
of the effect that those intimations and insinuations were intended to
have. If it is proper for a Judge to comment, at his pleasure, before
the jury, and thus determine their verdict, why longer retain this boasted
tribunal? A party demnands a jury only when he is not willing to trust
the Judge; if, however, these special efforts of the Judge to control
the verdict are to be deemed proper, he has gained nothing by the
choice, and the supposed benefits of the system. It may be said there
is an appellate jurisdiction, for the correction of errors, intentional or
otherwise.'Tis true; but where the respondent is Judge, that is only a
theory, not a practical benefit. Taking the evidence before this Senate
as authority, he does not intend, if he can prevent it, that his judgment shall be reversed.  The records for the Supreme Court contain no
impartial history of the case. His will and pleasure is the rule. lie
concedes to no law, to no right, if in the way of his purpose.   of all
Judges, none but he has been so bold as to claim to prescribe the causes
set forth for new trials, or in arrest. Excepting the instance before us,
where in the history of the judiciary has a Judge dared to say that he
would not attest the exceptions unless specified causes in the motion
papers were stricken out? These motions had already been overruled,
and were a part of the proceedings in the cause, and what effect, therefore, it may be asked, would an erasure of specified causes have?
Motions are no part of the record, and consequently the Supreme Court
could not review the action of the inferior court upon them,unless they
should be preserved by a bill of exceptions. (10 Mo. Rep., p. 457.) This
respondent well knew, and hence his proscriptive conduct. To lessen
the causes would lessen the chances of a reversal of his judgment.
The right to prescribe one cause, is, in principle, the right to prescribe
the motion, as well as the right to make it, which would be subversive
of the law. The powers of the Judge, and the rights of the pleader,
are at law perfectly consistent. The latter may assign causes at his
pleasure; the former sustain or overrule; and the appellate court is the
arbiter between them. It is, therefore, an inevitable conclusion that
respondent by this reckless and proscriptive act, not only grossly abused
the rights of the pleader, but the clear and well defined(l rights of the
Supreme Court-that of reviewing the acts of the court below and
346 
MR. HARDINeS ARGUMENT.
thereby directing the due administration of justice. If this position be
indisputable, then the Senate has this pointed issue before it: either to
approve of this bold subversion of the law, or to remove respondent from
office, and maintain the rights and powers of that court which was
organized as the supreme protecting power to society, the State, and the
citizen. But it may be said that the causes stricken out were frivolous.
Whether so or not, does not affect the principle. The pleader had the
right to assign causes without limit, and no power known to the law can
take it from him. That a corrupt motive controlled respondent is further
evidenced by the fact that he refused, absolutely, to attest the evidence.
The statute is, that if truly written, the Judge shall sign it. (Rev. Code,
1855, p. 1264.) The question is, was it truly written, and not whether respondent believed or knew it to be so. Messrs. Tyrell and Bedford testify
that it was true; nor did respondent then or now claim that it was not.
He based his refusal on the statement that there was so much noise at the
time that he was unable to hear the evidence. But if untrue, it devolved
upon him to certify this as the cause. (Rev. Code, 1855, p. 1265.) Failing to do so, Griffie could not procure the certificate of bystanders, as
they can certify only where the Judge has endorsed his refusal. The
defendant was, therefore, left unprotected, and the right of appeal, in
effect, denied him. For of what value is the right, if he could not
avail himself of its benefits? With such uncontroverted evidence before the Senate, can it hesitate to convict and remove? Can it hesitate
to take from respondent that authority which, though given to him for
the sacred purposes of right and justice, he has so vilely abused?
The material facts adduced in support of the charges allegedin article
eighteen are as follows: At the trial of Sarah Buckner, charged with
the murder of her second husband, her son by the first husband, about
fourteen years old, was introduced as a witness on behalf of the State,
and proved the murder to have been committed by his mother, and a
sister older than himself. The State further introduced Grimsley, the
Sheriffi; who testified as to confessions made by defendant, at the time
of her arrest. Whilst this witness was on the stand, respondent said,
-'Mr. Circuit Attorney, I would withdraw that witness," who not taking
the hint, the witness proceeded. On cross-examination, counsel for
defendant undertook to elicit from the witness other statements, as
made by defendant at the time of, and in the same conversation in
which the confessions adduced were made; such as that she did not kill
her husband, but that her daughter did, because of an attempt, on his
part, upon her chastity. The entire defense rested upon the admission
of this evidence. That it was legal and competent no one can dispute.
But respondent, as Judge, refused its admission. Exceptions were
saved, and a bill tendered, which he refused to, and did not, sign; nor
did he endorse thereon the cause of his refusal. As soon as court
opened after recess for dinner, the Circuit Attorney moved and obtained leave to withdraw from the jury the testimony of Grimsley, who
was testifying at the taking of recess. Defendant by her counsel objected to the withdrawal of the testimony, insisting that the defense
rested on the confessions which were for her, and had not yet been
allowed to come out, and also that the entire statement should be admitted to determine the weight and construction of those confessions which
had been stated, and also that, as the State had produced the testimony,
which had doubtless produced a deep impression with the jury, it ought
not to be withdrawn till the whole was admitted; nor then, except upon the consent of defendant. The evidence was, however, withdrawn;
of this there can be no doubt, as Phelan, Moore, Davis, and others, have
so testified-the jury was so instructed by the court repeatedly. Defendant offered to prove by two witnesses, that the deceased husband
347 
HIGH COURT OF IMPEACHMENT.
confessed to an attempt upon the chastity of her daughter. Respond ent, as Judge, refused to admit it. In his argument to the jury, the
Circuit Attorney did not comment on, or allude to the testimony of
Grimsley, but treated it as having been withdrawn.  In the course of
Mr. Davis's argument for the defense, he undertook to allude to and
comment on the testimony of Grimsley, not as evidence, but for the
purpose, as it had been withdrawn, of effacing any impression it had
made on the minds of the jury.  Respondent forbid harshly any allu sion to that evidence, as it had been withdrawn. Mr. Davis undertook,
by way of effecting his purpose, to suppose a case, involving the state of
facts as testified to by Grimsley. He was forbidden the use of any such
supposition. After other interruptions by the court, he quit the case,
saying he would not stand by and see his client Jeffreyized.  Mr. Phelan, in his argument for the defense, spoke of Grimsley's testimony to
divest the minds of the jury of any impression that it was testimony.
Respondent directed him not to speak of it, as it had been withdrawn.
Phelan endeavored to explain his purpose. Respondent seemed to get
angry, and threatened him.  Respondent treated  Davis and Phelan
with great contempt. Moore testified that respondent asked pretty
much all the questions that were asked of the witnesses on behalf of
the State; Phelan states that he seemed to be more the State's attorney than Woodsides.  Defendant's counsel objected to respondent asking questions.  Defendant was convicted, and motions for a new trial
.and in arrest were made, and overruled. The motion in arrest contained the reason that the defendant could not be convicted upon the
testimony of one witness, without corroborating circumstances. Althlough respondent, in the course of this trial, claimed the credit of
suggesting it, yet we shall not dispute it with him. Subsequently a bill
of exceptions was tendered respondent for his signature, not embracing
the testimony of Grimsley, or the action of the court in relation to it.
Respondent insisted that there were two witnesses on behalf of the
State, Grimnsley being one of them. Mr. Phelan assured him that the
testimony of Grimsley was withdrawn from the jury. Respondent insisted that it was not withdrawn, and thereupon wrote the testimony
himself, at large, in the bill of exceptions; and, what is more, put in as
a part of the testimony of Grimsley, that which defendant made every
effort to call out on cross-examination, and which respondent refused
to admit. Upon this state of facts, we charge respondent with a corrupt intent to procure the conviction of said Sarah Buckner, and with
most shameful oppression, partiality, and abuse of authority at her
trial.  \No fact enumerated is consistent with the due administration of
justice.  Nothing like it has ever been observed in our favored land,
beyond the limits of his circuit. There it has, to our disgrace, been oft
repeated, as the evidence, before the Senate, establishes beyond controversy. Does not the most unlettered citizen in the law know that the
whole confession, both that which is for, as well as against the party
confessing, must go to the jury? Is there a magistrate in office so stupid
that does not know it? Are not all the authorities uniform in maintaining this rule of evidence? Respondent has not, and does not controvert it. Why, therefore, were his rulings, upon so important an occasion, so much at war with law and humanity? Can there be any other
conclusion than he had a cruel purpose to procure her conviction? This
is strengthened by other facts in the history of this strange trial. A
bill of exceptions, recording the outrage which he had perpetrated, was
promptly presented for his signature. This he as promptly refused,
although it was his lawful duty to give it. Apprehending, as it might
be supposed, that this flagrant act might, in some form, develop a
happy effect for defendant, and thinking also. perhaps, that the impres
348 
MR. IIARDIN' S ARGUMENT.
sion the confessions admitted had made could not be effaced from the
minds of the jury, he advised the Circuit Attorney, by a hint, to withdraw the evidence. The hint was not then taken. After recess, however, it was acted upon.  Whether a private conference transpired does
not appear in evidence; but this we do know, that respondent advised
it before noon, and after recess it was withdrawn. Why it was withdrawn does not appear in evidence.  No reason was given.  Nor can it
be supposed that if there was one, it was favorable to the defense, since
the respondent, who sought her conviction, as every fact shows, and
the Circuit Attorney, whose duty it was to effect it, concurerd is, and
the counsel for defense objected to, its withdrawal. As further evidence that respondent was controlled by corrupt motives on that occasion, he used the influence of his position against defendant, in conducting mainly the examination on behalf of the State; in other words,
was "more the State's attorney than Woodsides." The counsel for the
defense saw and felt, from the character and manner of the examination had by respondent, that he was using it as a weapon against their
client, and were, therefore, forced to object to any further examination
by him. There was a Circuit Attorney present, and competent to discharge his duties.  Why, therefore, should this respondent elbow him
aside, unless perchance he believed that his efforts would be the most
effective? There are other links in the chain of evidence that support
the charge.  At best it was but an innocent and very natural caution in
the counsel of defendant to impress upon the jury the fact that Grimnsley's testimony was withdrawn. I claim that it was their right and
duty to do so, and it seems to me that no upright and just Judge would
have denied it to them.  They explained their purpose, but to no effect.
For the sake of their cause, they endeavored to do by indirection
what they were not allowed to do by direct words. The same tyrannical mandate fell from the benich, and crushed every hope of service to
a client that seemed to be marked as a victim by that Judge, to whom
she looked for mercy and an impartial trial.  So unjust and unfeeling
were his commands, so severe and contemptuous his manner, that the
proud spirit of AMr. Davis could no longer endure it. Hte would no
longer witness at the shrine of public justice the immolation of those
sacred rights which the law had so faithfully guarantied to his client,
his associate, aind himself; but indignantly abandoned the cause to such
fortunes as might attend it. Mr. Phelan counted on more success; but
he had not gone far on the line of strict duty, before, under threats of
severe punishment, he made it convenient to suit his argument to the
latitude that had been prescribed. Under the force of such rulings,
such manner, and such influences, it is needless to repeat that this
wretched old woman was convicted.  Did respondent, on that occasion,
discharge his duty?  Did he administer faithfully and impartially the
law? T'hat he did no intelligent and unbiased mind can or will admit.
The thrilling horror of the crime does not enter into the question. Possibly, in point of fact, conviction was her just desert.  But th,ese things
ought not to justify or excuse the conduct of respondent, or influence
deliberation on the charge under consideration. As it is proper to adduce subsequent acts to show the intent with which a deed has been
committed, we claim, as decisive evidence of the corrupt motives that
governed respondent at the trial, that, without authority of law or
usage, or the plainest dictates of natural justice to sustain him, he
inserted in the bill of exceptions the testimony of Grimsley as having
been given to, and considered by the jury, when in truth it had been
withdrawin.  No fact has been more satisfactorily established at this
trial than that. I-e that would seek by such shameful conduct to unbalance the scales of justice in another court ought not and cannot
349 
HIGH COURT OF IMPEACHMENT.
be trusted in his own.  Hie that would impose a false record on the
Supreme Court, will, without remorse, sacrifice the noblest principles
of the law for the accomplishment of such purposes as so depraved a
being may in his pleasure originate.
I have now, Mr. President, considered as many of the articles as it
was my purpose at the beginning to do.  If I have presented the facts
fairly, and,drawn just conclusions therefrom, I am satisfied. I might
have elaborated the argument more, but have not deemed it necessary.
The case is one of great breadth, but not complex; the evidence,
though voluminous, is clear, and without material discrepancy.  With
a proper appreciation of the duties of a Judge and the rights of attor neys and parties of his court, no one can hesitate to visit upon respond ent the award which the enormity of his conduct so justly deserves.   I
venture the opinion that the evidence discloses a more flagrant abuse of
authority and duty, than was ever shown in any impeachment trial in
our beloved republic.   The impeachments of Judges Pickering and
Thomas were confined to a very limited number of acts of misbehavior.
This, however, covers a period of eighteen months, and almost every
character of official duty. He is found to have repeatedly used his authority to punish those he regarded as his personal enemies, and to
screen those admitted to be friends. He has played a bolder part still;
he has used the same authority to protect his official acts from the scrutiny of the grand jury, and to prevent the most glaringly unjust adjudications from an investigation by the appellate court. All these acts
were, beyond dispute, governed by corrupt motives. In most of the
charges, it is obvious from the acts themselves; in others, such conclusion is readily drawn from the attending circumstances.  He does not
claim, nor could it be admitted from his reputation for learning in the
law, that his behavior under investigation was the result of ignorance
of his duty. If not founded in ignorance. his conduct is most reprehensible, and he the proper subject of punishment. If not so founded,
it is due to those who have so long and so often suffered the severity of
his tyranny, and to the honor and fidelity of the judiciary of our State,
that one who has proven himself so grossly recreant to the sacred principles, moral and legal, of his position, should not only be removed, but
disqualified from again holding office. Whatever, however, may be the
action of this Senate, I trust it will be such as will meet the approval of
the people of the State.
The argument of Mr. Hardin having been concluded, on motion of
SENATOR JONES the Court adjourned.
350 
JUDGE JACKSON S ARGUMENT.
EVENING SESSION.
I
351
MONDAY, June 20, 1859.
The Court met pursuant to adjournment.
The managers and respondent attended.
[Reported by George C. Stedman.]
ARGT-MENT OF JUDGE JACKSON.
JUDGE JACKSON arose and addressed the Court as follows:
Mr. PRESII)ET: In what I have to say further I shall not go over a
part of the law I did the other day in presenting my case. I shall barely allude to certain parts of it. As I still entertain the views I then
took, with regard to the constitution of the State of Missouri, and the
constitution of the United States, in cases of this kind, and as to what
is to govern in cases of impeachment in this State. I hold you cannot
go outside of the laws and the constitution of the State of Missouri.
There is hardly a provision made in that to meet any case which may
arise there, however illegal, however unjust a Judge  may act.  There
is no method upon it by which he may be got rid of. And in doing
that, I hold. as I did then, there are two classes of impeachment. Now,
there can be nothing more plain and distinct, and it is for the safety
of the citizens of the State, that these provisions are made in the constitution. I could not help noticing a certain provision, and that was
that a person shall not be deprived of life, liberty, and property, except
by the judgment of his peers, or the law of the land. That a person
cannot be preceeded against by information for an indictable offense;
and I simply allude to it again for a moment or two. During one of the
discussions that was going on here a gentleman of the Senate said they
had duties to perform as Senators to their consciences and to their
country.  That is the whole doctrine.  How can you try a person according to the laws of the State of Missouri, if, when you are trying
that person not as a citizen you have your Senatorial influence, and proceed as Senators and not as citizens? Now, the constitution provides
that when a person has violated the laws of Missouri, he must be tried
by his peers-that is, persons standing just precisely as he does. HTe is
a citizen, having the same rights and privileges, and no others. Now,
as Senator-s you have your opinions of the rules of the Senate, and the
propriety of Senators, and how they should act. That upon a jury is a
different matter. But the constitution says that no man shall be tried
tor an offense by persons acting in any other capacity than that of a
common citizen. 
I will direct the attention of the Senators to these provisions of the
constitution of the State of Missouri.  The constitution provides that
there are three distinct departments, which combined constitute the
magistracy. No person belonging to one department shall exercise powers properly belonging to another. Now, gentlemen, in trying this case,
what do you do? You exercise the powers of the judiciary. Do you
not take upon you to discharge and decide in this case? and in doing
that you have to decide, whether decisions made by the Supreme Court
were right or wrong. In order to convict me of these charges here,
you must have a case before you which I had before me in the Circuit
Court, and you have then to decide whether the decisions I made were 
HIGH COURT OF IMPEACHMENT.
right or wrong. Now, gentlemen, is that your province as Senators?
Can you exercise that power and control over the judiciary? Must not
they be separate and distiiinct? If a Judge of the Circuit Court commits
an offense, he must be indicted and tried by a jury: and if convicted,
then it is for a felony, and then it is not impeachable under the law
The Legislature may turn a Judge out of office, but in doing that they
cannot examine into his guilt or innocence, but simply into the fact
whether he has been convicted or not.  The fact of his having been
convicted being ascertained, it is sufficient for the Senate to dismiss
him from office,-if it is for a misdemeanor in office, and he be guilty
of any offense.
The only misdemeanors a Judge can commit under the constitution,
or under the law, I have noticed. The constitution provides that he
shall reside in the circuit; he shall be thirty yeais of age and not over
sixty-five, and shall take the oath to support the constitution.  If a
person undertakes to exercise the duties of Judge, and does not reside
in the circuit, it is not crime that renders him  ineligible; but if he re sides outside the circuit, persons interested may petition the Legislature
and state the fact,-that a Judge of such circuit does not reside in the
circuit,-and they may impeach.  And what does the Senate do?  Not
to inquire if that Judge is guilty of crime or not, but simply, has he
done something which the constitution or the law forbids.  And so, too,
if a Judge practices law while he continues to lihol( office,-that is im peachable.  It is, however, no  crime.  But he  cannot do the two
together.  If he has a partner practicing iln his o'wn court, that is no
crime, but it is what the law forbids the Judlge to do.  If he will persist
in having a partner, hlie cannot hold an office, and hlie is dismissed.
The General Assembly can impeach, or exclude fiomn office, persons
convicted of bribery. penjury, aind other infamous crimes.  Page 67, article third, sections fourteen and fifteen of the constitution says this:
Before a person can lbe impeached for comm-itting an offense, he must
be indicted and convicted, and then all the S(enate will do will be to inquire into the fact of conviction.  And there too is another provision of
the constitution-" trial by jury shall forever be inviolate "-" no person
shall be deprived of life, liberty, or property, but by the judgmenlt of his
peers and the law of the land'-P" no person, oibr an indictable offense,
can be proceeded against by information, etc.
Now as to the constitution of the United States, to which these precedlents all refer, there is not the exception there.  The provision is, that
all trials shall be by jury, except in cases of impeachment. The constitution of Missouri does not make that exception in any case, for in no
case whatever can a person be proceeded against except by indictment.
But that makes the difference, and that is where all these precedents
which are read here to-day comes from, that the managers do not notice
the distinction.
The constitution of the Utnited States also provides that persons may
be indicted for treason, bribery, and high crimes and misdemeanors
but in the constitution of the State of Mlissouri, the Judges and other
officers may be impeached for misdemeanors in office.  There is all the
difference in the world. They can be impeached for felonies or any
other offenses. Under the constitution of the State of Missouri, it cannot be done.  It is only for misdemeanor in office; and misdemeanor
and malfeasance, though for the latter a person cannot be impeached.
It must be for misdemeanor,-for doing something which the law provides he must not do, and leaving undone something which the law
provides he shall do. And I hold that these distinctions are important.
I think where they do not involve crime, they involve official misconliuct.  Now. a Legislature cannot inquire into the misconduct of Judges.
352 
JUDGE JACKSON S ARGUMENT.
If a Judge of the inferior courts decides wrong, if he commits error, if he
makes mistakes, it must be rectified in the superior court, and not by
the Legislature. Giving the Legislature this power over the judiciary is
putting it completely under the control of the Legislature.  Why, in
making a decision, if this rule is to govern, if the course which the
managers defend iV this manner, the Judge must make his decision of
what he thinks will be the opinions of the majority of the Senate.  If
he makes a decision, though he may be honest in it, and conceives it to
be the law, a bystander takes exceptions to it.  The attorney on one
side comes up and goes to trial, and a point is decided against him
which he thinks is right; he ascertains whether a majority of the Senate
thinks the same way with him. If they do, they impeach the Judge,
and bring him publicly before the Senate; and if he has committed
error, he is guilty of crime.
Now, gentlemen, is that fair?  Is that the law of Missouri? If I
thought it was, indeed I would not wish to hold a judgeship one single
solitary day.  No Judge would be safe  his character would always be
in the hands of the Legislature; his conduct would always be subject to
investigation; and for error, and misconduct, and mistakes, he would
be held up before the woild, and his conduct treatedl as criminal.
NTow, },r. HIlardin argues here, from beginning to end, that the Judge
has no discretion.  If, in conducting his court, he acts contrary to the
law, he may be impeached. Who has to decide whether he acts contrary
to the law?  If the courts are not to decide, who is to decide according
to law?  MAr. HIardin's notion is, as expressed by himself, that it is the
Legislature only.  Now,   IIr.,Irdin says the constitution guards the
liberties of the people.  So it does, and in guarding, the liberties of the
people, it provildedl three separate and distinct parts of government.
And -Air. ilardini says, persons entrusted with power are apt to become
oppressive.  Is it any more dangerous in the hands of the Judiciary
than in that of the Legislature?  Are not members of the Legislature
just as liable to be oppressive?  Are not they just as much so as the
Judges of the courts?  But who, if Judges do wrong,-who  are the
persons to rectify them?  I ask him where, in the constitution or laws,
he finds that authority, that the Legislature nmay set in judgm(ent upon
the acts of the Judiciary. If the Representatives of the people, they
are elected only two years. If the Senators, they are elected for four
years. The Judges are elected for six years. If either of these persons
act oppressively, and not rig(ht, who are they responsible to?  Is it not
to their constituents?  If a man violates the law which his constituents
may not, can they have him indicted for it?  Is it any opportunity to
get clear of him, except when the next election comes around, not to
vote for him?  If these officers do not discharge their duties faithfully
and honestly, the only way you can get clear of them is by the poll
books.
It did not, when the constitution was passed, and when thisl,aw was
acknowledged, regulating impeachments,-it was not the case with
Judges.  They must hold it by life tenure; they could hold it until
sixty-five years  of age.  If they got a Judge, it was impossible,
if they were displeased with him, to get clear of him.  Now people
choose their own Judges, and if they choose to put up with a person
who cannot be as courteous as some others, there is no injusticedone to
any person or laws. It is their business.
Now, the constitution, as Mr. Hardin says, of the State of Missouri
was modeled after the constitution of the United States. That is not
so.  The constitution of the United States was made for one purpose,
and the constitution of the State of Missouri was made to govern the
people in all their domestic relations and civil affairs. The constitution
23                                                         e
353 
ItIGII CO'URT OF IMPEACHMENT.
of the United States is limited in its operation and for particular purposes. The constitution of the State of MIissouri is to govern in all
particulars.  Now, in referring to Judge T'homnas. because as Sir. Hardin said, you swill notice, gentlemen, in that case the cause of impeachment against Judge Thomrna.s, was for violating a particular provision of
that law.  It is found now in the statute-the law  about disposing of
offices. It will be found in volume 1, page 613:
Every person holding or exercising any office of public trust under the constitution or laws of this State, who shall for any rewardl or gratuity, or any valuable consideration, paid or agreed to be paid, directly or indirectly, grant, bargain, or sell such office, or any deputation thereof, or grant the right or authority to discharge any of the duties thereof to an otiher, shaill, on conviction, be
Iunished by imprisonment in the penitentiary, not exceeding five years, or by
imprisonment in a county jail, not exceeding one year, or by fine, not exceeding one thousand dollars, or by both such fine and imprisonment.
Under this preceding section, in looking into that, you will find it
was said,-Colburn Thomas it is said had agreed to give WVashington (or)
the Geneial-Adjutant four thousand dollars for the circuit.  T'he clerkships were filled by appointment.  It was after the violation of that
law he was accused.  He was probably imrpeached for some of these, and
may be found guilty, but was the punishment for thie illegal offense
and illegal act?  Now, in the articles of impeachmnent, two thousand
things may Le omitted.  They may be expressed, and they nmay find a
person to say the Judlge did it; but are they of such a nature he may
be dismissed fromn office for having done so?  For a violation of that
law,-in turning back the law at that time was nearly the same as it is
now,-for violating a law in that particular, in helping to sell or make
a bargain about selling the office, and buy it as the Judge did, and making his son fill it.-that was an express violation of the statute.
In another cause decided for alowiing illegal testimony to be inltroducedc in a cause.  If a Judge is influened, and permits illegal testimony to go before a jury, that is not impeachable;  but if he did it for
the express purpose, and with an understanding that it was to acquit or
convict a person, for that hlie would be impeachable.  It is corruption,
and not for errors and mistakes.
Now, gentlemen, I propose to go thlIouli these articles and examine
the principal testimnony as applied to tlihni; and in doing so, I shall not
violate tlhe chronological order in which t le testimony was given in, but
take each witness's testimony and apply it to each article, as I am going
along.  There are two, three, or four witnesses whose testimony is of
much importance, as connected with these articles.  Now, the first article of impeachment,-it is upon a inandamus case:
That the said Albert Jackson, desiring to harrass and oppress the said Jonas
Eaker, did, at the Circuit Court aforesaid, whereat he,  the said Albert Jackson,
presided as Judge, as aforesaid, cause an attachl,ent to issue against him, the said
Eaker, as for a criminal contempt, because said Ea.ker did inot mhae return to a
writ of mandamus, which writ had never been delivered  to said  Eaker, but of
which a coply had been delivered to said Eakler.
Now in order to examine into this and establish this, what csurse has
been pursued?  Now I hold in no court could the records be departed
from, and the official acts, of anyv Ju(lge must l)e known fr'om- the act,
and nothing else. If you introduce oral testimonyv to establish a record,
what use is any copying records, if no irecord is made up?  If this is not
to be a proof of the action of a Jl(udge, w-hat use are they?  If a by.tander is to be called in to establish  iecords, of what use are the
records?  And whlat protectionl as a Judge for his acts and doings, if a
3;')4
0 
JUI)GE  JACKlSON9S ARGUMENT.
bystander or any person who may be interested may be called in to contradict that record?  Now the law is here plain, even if there had been
no decision upon it.  It is so plain in that matter, I (I) not think it
could be misunderstood.  I will read first from a part of the decision in
the case o,f Nfedlin rs. Platte county, where it was attempted to offer
the verbal testimony of a person.  But hear what was done in court.  I
will only read that part of it.  It is the 8th volutie, at the commencement of thle case, i)age 2357;   read on page 238:
With regaid to ti, instructions charged to have been erroneously given bythe Circuit Court, it may be observe(ld, that, like other bodies corporate, and also,
like personls, it will b)e presurned to accept whatever is for its interest to receives.
until it in some way signifies its dissent; but it will be presumljed to parts w,ith.
none of its rights till it has expressed its will on its records: the evidene then
offered,. c., the testimonv of one of the'Judges, to prove that the several nliembers of thabt eoitt, while in session, assented to the erasure of Jolinsoe,s name,
&c., was inadmi ssible.  The Judges of the Coulnty Court could express their asselt to suclh an act on their record only; and it will then only be il. season for
this court t B.ecide whliether such an entry of assent cani be made ci4 cp ro tunc,
wheoa suech.n entry shall have liee n made by the County Coirnt, but no such
entry being nsow made, this court inusit proeed as if it had n VEr hverdIanything
of the assc-y-t of the 3Judges in open court.
There, one of the Judges offered to swear such a thiri-vwas done in
court, e,d thie S ipreme   Court decided if it was not upon, the record, the
word ef the Judge itself -as not sufficient.  Here it is brought in,-just
a by-t:.ssnder, —to contra(lict th,e record of what a court of record does.
Fi-s.Dpinio-i only of deeds olf law it is judging  by.  The proceedings
car-not be estaublisled by oral te.timony.  I refer,Jso0 to the 12th vol.
5io. Reports, case of Milian, administrator, vs. Pemhertonl, p. 598:
From the testimonay in this case, it is apparent that the plaintiff relied upoln
'-xhat -as do-e    t himt  under the last cited ciaUse of the statute.  lie proved.
before the eooir, thalt he had ofered thi   cai0       for t, Ilowvance  in the County
Cou'rt -t Jul  tiilyi  15, a18nd that the def,eul,ant walived the notice in openi
court.  Thlat in, oh'laI was not sutf(iently proved tand was witl-lidrawn.  There
ws 5al 4    i: tioi to this proof by  parel; there  w -. no trace of aiiy such proee1ding on ihe record of the County Court lThe testimony was offered before
the co'it,.-1d is there.was no juiy, it w,as right  und p)roper for the court to,
he.ra tho  tes.<timior fiirst beocre it could deterumiine uie;i  its legallity.  The effect
of this testi.mon.y, its admissibliLty, its competn ey, we e l)rought before the court
by the )abtiff s ii i:triietion.  We havre no dolubt that such evi(lence was  imlproper; it wat entirelv inadmissi;le.   No case has been found, where a party
hba  boee1n ermit tel to pr ove beftore one court of rsecord what he did, what proee(dings   eri' hadii ad done lbtefore another court of record in a judicial investigation, by miere parol testimonv.  The acts, doings, jutdgsnents, and proceedings
outs of record is kno       lwn b  the rco rds of these courts.  Such  proceedings
civ oftei be ar menoded   mav be aiterid to suit the true state of fiets; but there
is alwavs ionethii ng t) alter ior amenld  bv.  Itore here    is an attenpt not to alteror anenid, bIt to make out a inew sublject  atter altogether, and thattoo by the
testimony of itee.   It is admitted that there is no trate (of any such protteetlin, a:; t    hi here proved by witnesse i upo the records of the Couniity
~.O1ti t.
I refer also to volume 7', page Cilf) and to volume 4, page'2(S.
These decisions all go to show that the record of the d(oings and p-riceedings of' a court of record tmust be established by thi retord itself;
and oral testimony cannot be introduced to establish what wavs done in
court.  Now in ti.es  articles of;inpeachnient, it is the testimtnony of person- who stool by aind saw what wats done, a.nd were present vwhen tlhe
recold waI being  nade up.  iNow th. result of what is done, the result
of proceedings in cot:rt, the motions, all motions and decisions, all that
are made. goes upon the record; and the action of the Judge must be
355 
IhIGH COURT OF IMPEACHMENT.
proved by the record. If his official acts are to be inquired into, either
to sustain a seat, or for any purpose,-for an indictment,-it must be
proved by that record: and if it is there, he cannot dispute it. NXow, in
this mandamus case, the record is here, and shows all that was done by
the court in that case.  There was, during the progress of that matter
an attachment issued; and, before it was served, and directly after, were
proceedings that have nothing to do with this. It does not govern the
conduct of the court, for all hlie did officially was upon the record. A
mandamus had been applied for, and had been issued, sometime before
the setting of the Circuit Court.  It was made returnable to the first day
of that term.  In the case there called, there had been no return made
by the person upon whom it was served.  Now what was the course to
pursue in that case?  What could the Judge of the Circuit Court do?
All that he could do about the matter was-all that he could see wasthat he issued a writ, and there was no return to it to him. Was he to
look to the bystanders? Hie had no more right to look to the Sllheriff
than aiy body else; the information could come from no person but the
person through whom it was served.  If it had never been served at all,
what could the Circuit Court do? All it could do would be this: knowing the writ had issued, the next step would be, to bring in the person
to show causq whv it had not been returned to him. And was the Circuit
Court to compel him? MIust the Judg(le, after issuing the writ himself,
go about personally and see whether it was served or not, and see whether
the person had a good excuse for not answering it?  Everything. I take
it, must be done regularly and in order; and if a writ wvas issued, and if
'he Sheriff had served it, or had served it by any other person. This
could be delivered by any person; it did not require an officer to do it;
he had nothing to do with returning it to the court; it is not that kind
,of writ.  It is like a writ of habeas corpus.  If there is no return to it in
-,wenty-four hours, the Judge must issue an attachment upon the person
.;pon whom it was served. There was nothing improper in this case.
But it seems Mr. Eaker, judging from what he says, thlought there
was going to be a difficulty.  He employs attorneys to keep from
answering.  All he had to do was to tell it to the court, and not to bystanders.  Hlow could he do it in court, except by making a return?
And you cannot help from gathering from the testimuony of the witnesses so far, it was not my intention to oppress and harrass him.  I
intimated to him before the attachment, you must make that excuse in
.court in the proper manner. That thus being served by copy it is not
necessary for him to answer.  Then if that return is good, there would
be an end to it..  The question was, how would he meet that in court?
'That is all about it.
The law provides that a Judge of our court may enforce by attachnent any writ or process sued out of the same court.  It was not for
the court to step aside, and go and ask Mr.  Eaker, " has this been
served upon you?" and if he tells you "no," that would b, a personal
matter,-it would have nothing to do with the court.  It must go to the
ears of the crowd, and not to the ears of the Judge, and that was the
difficulty in this matter.
But in this case the charge is that I caused attachment to issue for a
criminal contempt.  " Of which a copy only had been delivered to said
Baker."  Now how was all this known? not how was the Judge to
know, but how was the court to know that except by return in court?
But I read on:
-Well knowing that said writ had never been legally served upon him, the said
Eaker, and that he was not in contempt for not answering thereto.
Second. In refusing to permit counsel for said Eaker to speak in his behalf, when
356 
JUDGE JACKSON S ARGUMENT.
they proposed to show to the court that said writ of mandamus had never been
properly delivered to, or served upon him.
ThIird. In peremptorily, and in an oppressive, angry, and insulting manner, ordering the counsel of said Eaker, to wit, Solomon G. Kitchen  und William G.
Phelan, to shut their mouths and sit doevn, when they, in behalf of their said client,
attempted to suggest an insufficiency in the service of said writ of mandamus.
Fourth. In depriving said Jonas Eaker of the benefit of counsel, and of the
privilege of speaking through such counsel in his own defense, as he had a lawful right to.
Now, I would like to know how Air. Eaker could have had counsel
when he had no case in court. If it was not served upon him, he was
not there. How could he have counsel in court? Yet it is really, I
suppose, that case was confined to certain lawyers in the Fifteenth
Judicial Circuit. This idea of being a friend to the court and claiming
it as a right. Now, it seems from the learned Mr. Hlardin, that it is a
right. I never heard it contended for as a right, except from these two
gentlemen in the management of the case.  Anl attorney may simply
suggest a fact to the court. But the fact didn't exist. For instance, if
a Judge be about to render a judgment, by additional punishment, a
summnons on a note, and the summons was returned into court, and the
petition had been filed, and the summons issued and returned, and it
turned out the return, the notice hadn't been served in time, and the
attorney supposes so; and here is the person,-he makes no defense,
and does not appear; the Judge says there must be a,judgment given
against him.  He may not like to say the return was not served in time;
a bystander says I do not appear, but simply suggest there is no service.
Now, that is acting as amiCu? cue'iT,-as Mr. Knott's learned friend calls
it, ac-eec:,3 ct7reea.  Now, who contended that it gave a lawyer a right as
anl attorney to do that?  Not only is it a friend of the court, but it is
the " next friend,"-such as infants have appointed to defend them.  I
think the Legislature should provide that particular officer, and let the
people say who tlihecy want to act as next friend to the Judge; and not
let any person clhim as a right to appear and advocate a cause as though
they were another court.  Now, Mr. Hiardin I take to appear as the
next friend-the friend-of the court.  There could be no appearance,
except such an appearance through  which there could be a judgment
rendered. And whoever heard of such a thing as a judgment being
rendered upon a friend of the court?  This is what these men contended for, and I intended to instruct them. Mr. Kitchen- calls it
" squabble." I tried several times to ascertain if they had been ecmn
ployed to attend.  I told them that it could not be that they were
friends and counsel; and they said they were the next friends of the
court. Mr. Phelan says he was surprised that he had no right to appear as next friend of the court. And when he went into court and
appealed, hlie found out he was not allowed to appear as newt friend,
and then, after repeatedly urging me about it, when I told themn I did
not want their friendship, they come up here and reproach me because
they were not allowed to act in this unheard of way.  Mr. Phelan says,
' when spoken to by Judge Eaker, I told him there was no service, and
he requested me to attend to the matter in court."  Now, what business had he (Eaker) in court if hlie was not served?  Mr. Phelan further
says:
I concluded  the only way to get at it was to appear as the friend of the court,
and not as an attorney, and suggest the failure of the service.  You will recollect, Ju(l,ge Jackson, that you picked me up on that poinit once at Butler Court,
and I k-.ievw wou too well to take a course for which youll hald(l onice, as it were,
reprimlanded le.  I didn't vwant you to get me again in a matter of that kind,
357 
HIGH COURT OF IMPEACHMENT.
and I thought the course I did pursue was the only one you would regard as
proper.  Mr. Eaker asked my opinion as to the matter prior to this terni of the
court.
Now he says that was the only way he got out of it, not merely to
make a suggestion, but actually to appear for the defendant, and that is
the way. That was his opinion; that was the only way he could get
out, and when Mr. Kitchen told him he couldn't do it. he was taken by
surprise. And he supposed whenever he was a mind to he could appear
and instruct the court, and if the court didn't go according to his instructions, he could have it impeached for it.  I supposed MIr. Eaker
ought to make return to the court anid not to the bystanders-and he
thought not,-so he concluded he would get these lawyers.  Mr. Kitchen
talks about a great deal of "jabbering.'  It may be so on his part; I
had nothing to do with it.  1 told himl I would hear no more of it, and
got tired of it, and issued an attachmnent; and when Mr. Eaker came in
he was not put in custody.  He then concluded he would do what I intimated ought to be done.  And he said he wanted to write it, that this
was served by a copy. and did not make any further answer. I thought
so, and when it came to the court, I acted upon it.  When it only came
to me as an individual, I had( nothing to do wNitht it.  Lut as to my acts
as a court, when it c-aie in that way, I was satisfied and thought it was
a proper course.  Andcl what does Mr. Eaker say o0' it? Did he find
fault with it?  He said here upon the stand, there was nothing unfriendly, and he had no hard feelings-and I think something about
not speaking to me last spring. It was not that Judge Eaker thought
himself oppressed, but some other person told Judge Eaker lie was oppressed and badly treated, and he came to think he was; and then
comes up here and tells the Legislature it was him that was augriieved.
And there was no difficulty in the court; but some persons wtho wanted
to act as Judge themselves come and tell him they were oppressed, and
annoyed, and tyrannised over., and therefore it was a case of imiipeachment.
But there is som-ething behind all this, gentlemn., that nright be
shown.  I may mention it here, that you certainly wouldl not make up
your opinion in this case on ille(al testimony; you would require legal
testimony in every part anrd stage of the proceedings  you would require legal testimony to show I was Judge of the Fifteenth Judical Circuit Court; you would require testimony to show that the counties in
this case were part of that circuit. Do you know Stoddard county is in
the Fifteenth Judicial Circuit?  Where has the law been readi showing
it was ever in that circuit?  I am charged with dloing acts in the Fifteenth Judicial Circuit.  Ilas there been any evidence brought to show
that either of these counties composes part of the Fifteenth Judicial
Circuit?  Though you were trying a common  crimina,l,for a crime
charged to have been done within the limits of a certain county, would
it not have to be proved that it was done in that coIunty? Now, there
has never been a solitary person that has had a case in court thtere, that
has been a Clerk, or Sheriff, or person who has served upon a jury, who
comes forward and finds fault with my acts.  It has.l t)een by sornme
person or other through their attorneys.  And nowv, gentlcnen, would
you not.equire there should be somne proof that they were attorneys?
Hias there the least proof of that ever been introduced?  What does
Mr. Phelan say about it?  When he found there was a question about
it, and he was intimating he thought there was such proof and it could
not be produced, he treated it as though it was a matter he did not pay
attention to,-having his name enrolled and taking the oath, or any
.3 58 
JUDGE JACKSON5S ARGUMENT.
thing of the kind. He thought it was a matter rather unimportant.
Hear what the law says about it:
SsCTIOx 1. No person shall practice, as an attorney or counsellor at law, in
any court of record, unless he be a free white male, and obtain a license from
the Supreme Court or Circuit Court, or some one of the Judges thereof in vacatiolln.
SECTION 2. Every appliaint  for license to practice law, shall produce satisfactory testimonoials of goodl character, and undergo a strict examinationr as to his
qualificationis, byi one of the Judges.
SECTION 3. Every person obtaining a license, shall take an oath or affirmation
to support the constitution of the United States, aind of this State, and faithfully
to demnean himself in his practice, to the best of his knowledge and ability.  A
certificate of such oath shall be endorsed on the license.
SECTION 4. Each Clerk shall keep) a roll of attorneys, which shall be a record
of the court.
SECTION 5. If any person shall practice law in a,nyv court of record, without
being licensed, sw,orn, and enrolled, he shall be deemed quilty of a contempt of
court, and puni)ished as in other cases of contempt.
Now in all these cases where they represent themselves as attorneys,
they were liable to be fined for contempt of court.  Alnd Mr. Phelan
admits the fact.  Now, I take it., you can hardly convict a person of
these serious charges unless they are properly made out. But I care
nothing about these assertions.  It is the main facts themselves, these
articles here that are alleged, these accusations you are about to make
against me-I deny they exist.  Those that do exist-those facts that do
exist-! admit, and every act I did do, gentlemen-every act of my office
-I still stand by. Wherever it is alleged here that these acts were done,
and it is proved that they were done, I say I admit them. Wherever I
told these men they were out of order, and told them to take their seats,
I would do it again, under similar circumstances.  It was my duty to
keep order in court; and when they undertook to usurp that authority,
and to tell nme I was out of order, I did try to make them conduct themselves in a proper manner.  I think I did my duty.  I should do so again,
under similar circumstances.
In all the decisions I made, take the record-take the records of my
court-go back to the first case I ever tried; then take all, up to the
last, every one that is upon record, and as I did, so I will do again, under
similar circumstances.  I acted at the time I entered these judgments,at the time I made these decisions,-at the time I enacted these rules,I did it with the best lights I had before me.  I have seen no reason to
change them. If oppressive,.-if any man had to suffer an injury,-it
is not my fault, but the fault of the law.  I simply carried out the law
as I conceived it to be. If I committed errors, take it to the Supreme
Court, and have those errors removed, and do not hold me up as it criminal.  And if I did these thisigs, they may be righlt,,just, legal-  If I did
it from unholy purposes,-if I did it through a corrupt motive,-if I did
it for the objects of gratifying a malicious disposition, then turn me out.
But let, I say, that fact be proved.  If the facts that exist prove my corrupt motives; and if you find it exists, then turn me out to wandler, and
show I am not worthy to hold the office of Judge, and I won't complain;
but not because you find thte testimony of witnesses-and these witnesses
who are they? W itnesses who stand up here and acknowledge, themselves bitter enemies! Here is Mr. Tyrell, who testifies-what does he
tell you?  In words, that his testimony is false!  IHe told you that up
to within a few months, he thought highly of me; and when, as he says,
he was dissatisfied with me? he admits and confesses he had thought I
got no justice from that committee.  But since then, he says he thought
,+iley were doing right. but simply because he is questioned about it. lHe
359 
ITTGH COURT OF IMPEACHMENT.
said I had accused him of swearing falsely, not because I had acted
wrong as Judge, but he says because I had accused him wrongfully.
Then it was, he says, he comes up here and tells this tale. I hadn't done
anything wrong up to that time! He comes in now and testifies I have
been guilty of these charges.
Now as to the mandamus case, gentlemen, there is the testimony of
Mr. Eaker, the testimony of Mr. Tyrell, and the testimony of Kitchen,
Phelan, and Bedford. They all testify, except Messrs. Tyrell and Bedford. They didn't say much about it. It is mostly hearsay with them;
but it simply amounts to the same thing. The facts are got out. There
is no proof,-there is nothing oppressive, nothing! The Judge of the
court comes up and tells you, up to this last spring there was no unkind
words thought of, or unfriendliness between us. He has been told he
was oppressed, not because he thought so, but because he has been told
so.  With regard to the mandamus being issued, all these three trials
have been had, and the counsel all fail to show anything oppressive or
wrong in issuing the attachment. Then all present could not acquit
the attorneys of anything of that kind towards the court.
The next article is in these words:
ARTICL. II.  That said Albert Jackson, Judge as aforesaid, regardless of the
sacred obligation resting upon him to administer jiistice faithfully, imparltiallyv,
and without respect to per)sons, was, at a Circuit Court begun and held at the
town of Bloomfield, in the county of Stoddard, on the third Monday in November, A. D. 1858, whereat he, the said Albert Jackson, presided as Judge, willfully
and inmaliciouslv guilty of the grossest partiality and injustice, to wit:
Sirst. During the Circuit Court aforesaid, wher eat said Albert Jackson presided
as aforesaid, there was pending before said couirt the cause of Matthew  1-1. Moore
vs. James Walker, and the said Albert Jackson, corruptly, partially, and to the
utter degradation of the solenin  and iinportant functions of his said  office,
secretly advised the said James Walker, delendant in said cause, not to comipromise the same; that the field notes by which the property in dispute between
him and the said Moore could be identified, were lost, and that said Walker
would be successful in said cause, if he would refuse to compromise the same;
and that, in consequence of the prejudice of the said Albert Jackson, the said
Moore was compelled to have the venue in said cause changed.
Well, look at the testimony to support that.  There is but one witness.  I will read the testimony of Mr. Walker:
Me and AIr. Moore was disputing about somDe property.  HIe was claiming my
lots in Bloomfield.  I thought he had no right to them; and that w\as the matter that the suit was to be about.  Me and Mr. Jacksoii talked about it. He
asked me hov had we come out with our difficulty, if we had fixed it up, or
something like that.  I told him wve hadn't fixed it up, and I didn't know as we
would.  Then he told me it didn't matter; that the field-niotes of Bloomfield
had got lost, and, says he, they can't hurt you anyhow. I told him that I
thought not, and he said, that's my opinion about it. That was about all there
was of it.                                                      -
He says they were about to compromise before the suit was brought,
and that I told him I thought he could get it. Well, now, that is the
substance of the conversation. There is no matter in it. Ite evidently
thinks the conversation was before he was sued. I presume the conversation was after the suit, whether it is in proof or not. I will state a
fact: I never knew about the suit until Moore got up and said he intended to apply for a change of venue. Day after that I happened to
meet Walker, aid had this conversation.  And there was another matter.  I was interested about changing the lines. h-ad I not told it, it
would have been ground for impeachment; but because I did tell it, I
have been impeached for doing so.  And if I had gone on and tried
the cause, it would have been in such a way,-it would have affectec
360 
JUDGE JACKSON S ARGUMENT.
my own rights-that would have been impeachable. "You say it was
last week."  M1r. Mioore says it was last week.  lIe went away about
Thursday. He left a petition to be presented; consequently it was the
intention to take the change of venue, and probably the notice was
given a day or two, or three days, before it was noticed. The first I
knew about the suit was from the notice of the change of venue.  And
he, MAoore, said he would have taken the suit away anyhow, it was no
consequence. Now what is there corrupt in all that? It was a matter
of general conversation, and I think I remarked to him that the field
notes of the town could not be found, and they could not establish their
lines; and that was all about it. If that is an impeachable matter, I
cannot help it. I do not think I did wrong. I never thought about it
until I found it brought up here against me. If you think I was acting
corruptly in that matter-that I did it for the purpose of betraying Mr.
Moore-it is right for you to take it into consideration; but I think the
motives should be proved-in particular the effect of the act, and whether it was from a bad motive I did it.
The third article charges:
ARTICLE III.  That, actuated by a spirit of arbitrary despotism and wanton injustice, totally repugnant to the sacred duties pertaining to his office, and highly
dangerous to the rights of the citizens of the State, the said Albert Jackson,
Judge of thQ Fifteenth Judicial Circuit, at a Circuit Court begun and held w ithin and for the county of Wayne, in the State of Missouri, at the town of Greenville, in said county, on the last Monday in September, A. D. 185S, whereatsaid
Albert Jackson, by virtue of his office aforesaid, presided as Judge, was guilty of
willful and malicious oppression, misconduct, and abuse of authority in his official capacity:
First. During the Circuit Court aforesaid, at the time and place aforesaid,
David M. Fox, one of counsel for plaintiff, in the cause of         Limbarger vs.
Powers, then and there pending before said court, presented a petition to
said Albert Jackson, then and there presiding as Judge of said court aforesaid,
to change the venue of said cause to some other court, because of the prejudice
of the Judge, and informed him, the said Albert Jackson, that both parties and
their counsel had agreed that said cause might be sent to either the county of
Madison or the county of Iron, as either of said counties would be convenient,
and easy of access; but the said Albert Jackson, Judge as aforesaid, uttecrly unmindful of the rights of the parties and counsel in said cause, and totally disregarding the provisions of the statute in such cases made and provided, and
willfully and maliciously intending to harrass and oppress the parties aforesaid, and their counsel, awarded a change of venue in said cause to xlfississiplpi
county, well knowing said county to be remote, difficult of access, and inconvenient to all the parties, counsel, and witnesses in said cause.
Scecond. When counsel engaged in said cause, to wit, David M. Fox and Philip
Pipkin, attempted then and there to prevail upon him, the said Albert Jackson,
to change the venue to sonme other county more convenient to all parties, and
informed him that by sending said cause to Mississippi county he would deprive
them of the privilege of attending to their client's cause, as they had been employed to do, he, the said Jackson, replied to each of them in an oppressive
insolent and insulting manner, highly shameful, and derogatory to the dignity
of the important position he occupied as Judge, as aforesaid.
Now, merely for awarding that case to M,ississippi county, am I guilty
of these outrages against parties, and this tyranny? Now, gentlemen,
what are the facts in the case in proof of these charges? The simple
fact is, as Mr. Bedford's testimony shows, that Mr. Fox presented a petition for a change of venue, without saying one word to me where he
wanted it; and I am bound to say I could not notice what he said to
me. I will reverse the argument. Suppose M[r. Fox had told me he
wanted to send it to Madison, or Iron, and I had done so, it would have
been tyrannous, and they would have charged me with partiality. M1r.
Fox applied for a change of venue, and wanted me to send it to a cer
361 
HIGH COURT OF IMPEACHMENT.
tain county, and had I done so, that same thing would have been a,
pretty good case for impeachment. It would have shown I had done
what was not to the interest of the parties, if he had presented a petition. After I had ordered the change, they come here and complain
about it.  What does Mfr. Hardin say?  He rcads the statute  and he
tells you the statute says he shall send it to some county as convenient
as may be to the opposite party. I want to know if Mr. Hardin was in
earnest a,bout that?  Suppose that partvy lived in the north-west county
of this State,-suppose the defendant, Limbarger, the opposite party,
had lived in the north-west corner of this State,-could you have sent
it up there to where he was? and would not that have been an outrage? A Judge is made a judge of that matter.  lie must exercise his
discretion. lHe ought to be honest in it, in exercising that discretion.
But in doing this thing,-in sending it to Mississpipi couiity.-why, after
I have (lone it, S~r. Tyrell comes up here, and shows his spite against
me.  In his testimony he tells you he was present when this was done.
He says AIr. Pipkin and Mr. Fox were the attorneys, and they wanted
to go to another county; an(l when Mr. Fox and Mr. Bedford come,
they say tr. Fox and Mr. Pipkin were attorneys on the same side,
showing MAr. Tyrell did not know anything about it  Lie ought to have
said nothing. about it, if he did not know the fact.  He should have
said nothing about it.  lie sees these two attorneys, —one on one side,
and th otlher on the other side,-recommending me to send the case
up to these counties. In this conversation there is not a word said
about the party.  Now, I hold the Judge is not to be governed by an
attorney.  An attorney will take a change of venue to suit his convenience.
As to:5r. Fox and Mf~r. Pipkin, one lives in Iron county, and the
other in BAfadclison county; the others (lid not at.tend courts in either of
the other counties.  For me to be sending it there would have been to
send it away from Limbarger's attorneys.  3,fr. Fox and Pip)kin may
think so.  And what does Mr. Limbarger say?  Mr. Bedford tells you
he was attorney for Limbarger, and he says that he thinks it was recommended to me that either of these counties vwould do, and he was
was willing I should send it to either.  You will notice, gentlemen,
there was not a word said; I made no reply until after the order was
made.  I consider that after the Jude has made an order, it must
stand there, unless there has been some mistake.  Otherwise it must
not be changed during that term of the court.  It must be shown to be
a mistake in making out the testimony; because, I hold, when a decision is once male, it should stand.  Because if you cannot change it
within five months afterwards you cannot change it within five days.
Mvr. Bedford says he agreed, and when it come out after examining two
other persons., IIr. Limbiiarger and Fox did not find fault   Mr. Limbarger says he started home after the case had been continued, when some
one told him there was going to be a change of venue. Ile went back
to the court house, and saw Pipkiu writing a notice, and Mr. Fox writing a petition, and he set down by Be(lford and told him " they are
going to take a change of venue in this case."  "No," said Bedford,
'that is noit the case."  I see he objectedl to going to Fredericktown,
Mfadison county.  He shows that remark,,able pa)er.  Fox in a minute
or two threw his paper on the Clerk's desk.  Hle handed it to me, and
I ordered it to be sent to Mississippi county.  Not af word was said to
me.  Then Mr. Fox got up and said it didn't suit him to go over there.
The Clerk was sworn here.  Hle said next day Mr. Fox saidl again he
had rather the ease would be left in Wayne, than be sent to Mississippi
county and this is what it is.  After Mr. Fox had been urging it some
little I told him, says I, "Mr. Fox, if you would not take it as a personal
362 
0
JUDGE JACKSON S ARGUMENiT.
matter, and say it was to mortify you, I would fine you."  It was no in terest to me to make that change.  After it was made, I told him I
would fine him for contempt, for importuning me on the subject.  Now
is there anything, oppressive in all that?  In sending it to Mississippi
county?  It was a little further than sending it to Iron, but there was
only one county to go throuii,h in either case, and it was more conveni cut to tile attorneys on the other side-more convenient for Bedford to
go to Mississippi, because he never attends the Circuit Courts of Iron
and Madison.  Tiie proof is before you that it was impossible to try it
in Maladison, because the Pihillips case tock up the time of the court, and
if the suit had been sent to Bollinger, it wold have been three years be foire thev would have reached the case.  Now, was not I taking proper
nlotice of the convenience of all parties when I sent it to Alississippi
county?  N'ow, I think I exercised a most judicious care in the
matter.
NAow, ]et us look at this iiiatter about oppression to attorneys, and see
what it is. Bedf or tlhoullht the facts that make it so did not exist.  I
merely exercised  ws1 t,   conceived to be a proper care in the matter,
anl acted aIccorin.    do riot think there is anlything like corruption; but aki, ll the circumstances together, I think I find I fixed
the most convei)ient plaGe under the circumstances, that it could have
been sent to.  Now1 where is the proof in the matter of the charge for
ofl'cicial ni:demd?noi?
In regard to these other three eCaIses of change of venue to Pemiscot
county, the testimnony is by these samte persons that testified before.
Here is Mr. Moore.  HTe testified they went together up to Cape Girardleau and Bollingier counties, eightv or a hundred miles.  This other
county was the miost con,venient countyv. for the attorneys had rather it
would go un there-. The witnesses had rather it would go to Pemnliscot.
as Phelan, Bedford. and Moore testified.  Now, what was the testimony
of all the persons residing there?  Marsh, Clark, and Horner, practicing
attorneys, on one side,.ay they could cross there all the time.  If it is
up, they could go ii. boats  if it is down, they go on horseback; it req-ires no steambhoat at all. Now, with regard to what took place, see
howv these men swore here about it.  What takes place at the time of
the order for a chanre of venue? See how they say it was presented to
me.  Because they wanted it to go up to Bollinger county, and because
I did not send it up there, this is oppression and misconduct!  Mr.
Horner  aNs he was pieset, representing the plaintiff in that case, and
when the petition was presented, lie says that thoug,h one party wvas
willing for it to go to Cape Girarneau  or Bollinger, hlie wanted it sent to
New Madrid county.  That is one oi the next above Pemniscot, and still
across the swamp.  He wanted it to go there.  He says, as they could
inot agree, then i told them I would send it to Petniscot, and that was
the county he,aid he really wanted it to go to.  He did not mention it,
because after the others mentioned one, and I did not send if to that
one, he mentioned another county as near as hlie could.  But this is the
place he wanted it to go.  He says the parties and witnesses live across
in Tennessee? and in Dunklinl andl Pemiscot.  It was much  more convenient than to attend those counties above. Where, then, is this corruptionl?  AWhiere is a, ny ground of complaint in granting these changes
of venue? Is thtere anything more than exercising a sound discretion
upon my part?  I do not think there is any bad motive shown.  I did
it for no end but to discharge what I conceived to be my duty.  That
will apply to a sinilar case-this Point Pleasant and. Dunklin County
Plank Road: and the Dunklin County Plank Road against Murphy was
sent to the same county. It is proved the parties live in Madlison, Dunklin$ and I{m:niseot counties, except the parties interested, and they live
363 
HIGH COURT OF IMPEACHMENT.
in Tennessee, and this county is between their residence and the other
parties.  Where is misconduct in all that?  Now, Mir. Murphy was a
member of the Legislature, and from that county. They did not notice
him last winter, when they had him here as a witness.  Mr. Murphy
would not so testify, and they knew it. But those outside persons, who
have no interest in the case, come up and say they have been oppressed
and mistreated, because they were attorneys, and not a single one of
them has shown but what he, being an attorney, -vas guilty of contempt
of court. They have not shown they were licensed, nor taken the oath;
and if they do not show that, they are guilty of contempt of court in
getting up to speak.  They may call themselves attorneys, but the law
don't; and if I do not take that advantage, or if they are proceeding
against me criminally, let them pursue the law, and let me be convicted
by legal, competent, and fair testimony. In the third article is the case
of Limbarger vs. Powers, in Wayne county; and then article four is a
case from Pemiscot county.  They are all on the same footing, and all
alike, and what is proper in one is proper in another. I'll read the sixth
article:
ARPTICLE VI. That at a Circuit Court begun and held at the town of Poplar
Bluff; within and for the county of Butler, on the first Monday in May, A. D.
1858, whereat said Atbert Jackson presided as Judge, the said Albert Jackson
was willfully guilty of gross and malicious oppression, misconduct, and abuse of
official authority, not only unbecoming his high position as Judge, but disgraceful to his character as a man, to wit:
First. During the sitting of the Circuit Court aforesaid, whereat said Jackson
presided as Judge as aforesaid, one William G. Phelan, a regularly licensed lawyer, practicing in said court, arose to address a jury that had been empanneled
and sworn to try an issue joined in a cause then and there pending, to wit, the
cause of Gibson vs.. Dunn, in which said Phelan had been employed and was acting as counsel; whereupon said Albert Jackson, maliciously intending to oppress
said Phelan, and to injure his reputation as a citizen, asnd diminish his success
as a lawyer, in an angry, oppressive, insolent, and insulting manner, ordered
him to sit down, and then and there publicly, and in an insulting and contemptuous manner, accused said Phelan of having been guilty of a disgraceful and
criminal act, to wit, ta2pe)rin7g cithl the graeid jtry, and that said Phelan was in
criminal contempt of court, together with other shameful and insulting expressions.
Second. When said Phelan immediately offered to defend himself against said
disgraceful accusations and insulting expressions, said Albert Jackson, under
color of his authority as Ju(ldge, in an angry, insolent, and oppressive manner,
peremptorily ordered said Phelan to shut his mouth anid sit down, (or words of
that import,) and refused to permit said Phelan to say anything by way of denial,
excuse, explanation, palliation, or in any manner to vindicate himself against
the disgraceful, criminal charge, thus publicly alleged against him by said Judge
in open court.
Now then, gentlemen, we will look at the testimony of Mr. Phelan
in that matter:
A. I noticed nothing unusual in the trial of this cause-nothing that had any
particular connection with it. The trial of the cause was commenced in the
forenoon, and I cannot tell the exact stage of the case when the court took a recess for dinner.  After dinner, Judge Jackson came in apparently very much
excited.  I nmade a motion-I am unable to say now what it was, whether it was
addressed to the court, or whether it was the commencemient of my argument of
the case before the jury: I am inclined to thinkil it was the latter.  The Judge
stopped me. Itie said that I couldn't go on; that I was in contempt of court,
and that I had been tampering with the grand jury.  I don't recollect what my
reply was, though I recollect being astonished at the mannier in which the
charge was brought against me.  I think I said, "I believe not, Judge," and I
wished to defeind myself.  I cannot state exactly what occurred.  There were
some little aitercations between us, and I demanded to know what the charge
was.  The Judge told me to sit down.  I did sit down, but got up again directly,
0
,OD 6 4 
JUDGE JACKSON'S ARGUMENT.
and he told me to go on with the case, but he wished me to understand that I
was in contempt of court, and that I would have to answer for it-understand
me that I do not pretend to give his exact phraseology. I was under the impression at the time that a certain man who was a particular friend to the Judge
had betrayed the secrets of the grand jury, and I still think he did.  I proposed
to limyself to take some steps ill regard to the matter; however, that leads me
into outside matter, and it is not necessary to mention it further here.
Q. When you attempted to rebut the charge brought against you, did you succeed in getting an opportunity?
A. I endeavored to do so, but I never got leave to say a single word. HIis reply to my inquiries concernilng the charge, anid to my offers to exculpate myself,
was, in effect, that I might go on with the case then on hand.
Q. What was the character of his address to you?
A. It was very severe, very severe, indeed, and his manner showed much excitement.
Q. Were you excited yourself at the time?
A. I wvas not excited at that moment.  Afterwards I was, when he told mue to
"sit down," to "hush up," "take your seat."  I do not pretend to give the
words exactly, though it was one or the other, and made an impression upon me
as very severe and insulting.
Now let me tell what Mir. Kitchen said.  But first, you recollect Mr.
Phelan contends, and he tells you in his testimony, that he never gets
excited; he was "' annoyed" once or twice, but never excited! But
here he says he was excited,-not only annoyed but was excited.  Mr.
Kitchen testifies to the same point, and says he said it was a lie! and
what was it for?  Now, gentlemen, I will admit that of all these
charges and proceedings brought against  me, this is the only instance in which I manifested any  excitement.  I will admit I have
been annoyed and aggravated; but this is the only instance in which
I was excited.  Now I was not permitted to go on and tell all I could
that caused that excitenment.  But what did I do that should induce
Mr. Phelan to tell me, as I sat upon the bench, "it was a lie and
false."  I should have thought that would have excited almost any
Judge.  I was doing that which, if I hadn't done it, would have been
good cause of impeachment; and it is the very kind of act upon which
one of these articles is founded, for not giving information to be brought
against the Clerk. Here when I did do the very thing which the law
requires me to do,-to inform him he was in conritempt,-then I am impeached for that!  I did inform him, to give him notice that he might
have time to answer. They say I insulted the man. I do not think
there was a Judge in the State that had a harder time than the Judge
of the Fifteenth Circuit. The law provides a person shall be informed
of a charge, and shall have time to miake a defense; and here, when I
did that, I got insulting langage.  Suppose I had fined him without informing hinm of it-I would have been impeached then.  Let me proceed either to the right or to the left, I am still impeached.  Now, here
I come in and say, "Mr. Phelan, you must answer for contempt of
court.  You have been interfering with the grand jury in the discharge
of its duties," and gave him time; well, he then boldly s,ayvs it is a lie,that it is false, He then wants to make an explanation anid defenrd himself.  I say "no, go on, we will examine into this matter when you get
through with the case." He insists. I tell him several times to proceed in the case.  Here, then, for that-doing just wlhat the law says
shall be done, that he shall have a reasonable time to make his defense,-I am impeached for acting in accordance with it!  What shall
I do?  What shall I do?  In what way can I discharge my duties?  If
I had fined him I would have been impeached, because he would not
have had time to make a defense.  "Here was some little altercation
between us.  He told me to go on with the case, but that hlie wished me
to understand I was in contempt of court, and would have to answer
"D9 6 5
0 
IIIGI  COU"RT OF IMPEACHEFNT.
for it," &c.  Now, was not that a proper way to (do it?  I foiunti that hi,
was in contempt of court, and to purge him of that contempt. I wantea'
him to go on with the case and finish it.  (ertainiv this was not an im1:
proper course of policy.  The law required mxe to infoim  him before
hand.
There is nothing in this charge.  I assert that i  the whl(ole of my
official career, this is the only time I ever was excited onl the bench;
and if permitted,  I could give my reason for it.  [Ie says there was
something he believed.',r. Bedford testified that he got up, and appeared excited also.  I say I was excited and do not b-elieve there was
a man in the State of M-issouri but what woutld have been excited under
the circumstances.  Notwithstanding I cannot e xplain it here, such was
the -fact.  Phelan says I came from  the direction of the grand  jury
room.  I only told him to give him a chance to exculpate himself, andi
then there coccurred what Kithcen termis  "jabber;ri'g," and'iTyrell,
"squabbling."  But I was never excited except on this occasion.  Tihese
polite terms they used, I suppose, because  I   m,  a.s Mr. Phelan
says.  When I make a decision it cannot be chtanged.  If I make a dcisionr that don't please them and won't change it, then it is obstinacy.
If it pleases them to let the decision stand, theni it is firmness; and aecording to their feelings in the matter, I am as ob,tiate as a mule if I
won't alter things that they want altered, hut'ni asi      a   Judge
when I stik to a thing, tlhey belicve to be ig-t.'"'l- ther ithase
ology.
,,. WIhat wa.. th. character of his addtress to yoII 9
A. It ivts very severe, very severe, indeed, ant  is y.t.', sh,a Vi much  exh
era ont~mt.
His expression to me, th.t it w~as a l:ehat     ii vas fa,l,.,;;-as not very
severe and insulting,it all!  But if I te'll l-itc, tt.i.   hit (':"at, +hat vs
ve-ry sev erei anid inisultinig!
QO. IIadl y,-o d-,one ayvthliag to excite the Judge in         emne-ri a.    t-hte  yu s-peak
,f, in the tria-l of this eca-se?
A.  I think lnot.  I thiikL his excitement 1  oeeedl:  r:t:r n:T',Zt.er
That was the fact.  [-le tells you there was anotlier;':at'te,  You cancot get inforrimation of it out of his testimonv.  And so) there was somer
thing behin-d to excite, anid all they  )toved I did, w.ts merely toc inform
him he was in contempt which it was my  duty to do.  Antl  this, too, is
charged in the language of the articles of impeachm-enit."s corrupt, and
gross, and  malicious oppression, and misconduct,:.',id    usi:g officiaL:
authority. And that publicly and in an insulting, i.;ner &co
Nowv then, entleman,  I siubmit it.  Suppose  i told hI  to shut h's
mIouth an'1 set down.  Suppose I used the:e exl)pessionts. I do not think
they are very pIroper and better langtage mi,htL bIe usedlby a Jutlge,
even undeir excitement; but when they come to the proof; they do not
p-.'ove I said these words, but only wor(ls to that efLiet.   Lookl at the
testimiony of MIr. Tyrell, or Mr. Phelan, or lMr.  iedordoi, or MIr. Kitchen.
When I asK them the question directly, what it is I said, they can ner
comne exa,tl  at it.  I.ked themn to describe:some so very shar'p, solm
hlarshl, and some -everle, bult not a single time wv'ill theiy t(d aiin expression
uised; but not ainy time will they fail to say, it wasa hiiarshl expies,ion.
They won't give the points, but they come to th,e'eonecJusio, a'nd swe.)
positively to the fact.  But I hold it, if I spoklc  i'.Riat:i cal led i ha srh
languange, what inav be haisl-i to one is not to    otr  and so it is no
so much what hie  peaks, as the miotive fi'oin  wic'h lie acts, thrit yov
are to look at.  if I lidl these things with  tihe:,nt,t, oi to dischartt
366 
JUDGE JACKSO0ilS ARGU3MENT.
my duties, and to get along with the court all is right.  They migiht not
hlave been in as courteous language as others have used, but does that
show dishonesty and corruption?  Most certainly not.  I think, gentlemen, you will be particular to require the testimony to prove, not so,
much what was done, as the motive with which I acted. If there is not
conclusive testimony to show I have acted corruptlv in these things,
either in receiving pay, gratifying a malicious disposition, or doing inljustice in gratifying that disposition, you will not certainly find me guilty
of these charges.  I may not get along as smoothly, and speak as courteously as other Judges, but does it show I have been corrupt in the
matter?
ARTICLE VII.  That >aid Albert Jackson, Jidge as aforesaid, influenced by
similar spirit of nmaiciious persecution, was, at a Circuit Court begiiu and( held at
the town of Don.phan, within and for the county of Ripley, onl the 4th Monday
in October, A. D. 1857, whereat said Jackson presided as Judge, guilty of other
and similar acts of wiillful and malicious oppression, misconduct, and abuse of
authority
Fi,rst. In wantoldl, in, lenly and insultingly accusing one David M. Fox, a
regularly licensed!aw-e,i  practicing in said court, of lbeing guilty of the crie
of perj?;ry, or.' p f'j i,J/, and of lying, and causing his client to lie;.
all of which said Albert Jackson, without ally provoeation, blat in a spirit of vimdictive persecution, dil charge upon said Fox, in ope1n court,- wbhilst he, thie said
Albert Jackson, wiais exercising the functions of Juldlge of said eourt; tenling by
these, and innumerable other instanoes of oppression, co0ltul liels, iiisolent and
inlsulting expreossionlls towa-rds lawyers, and parties litigait, which hlie, the said
Jackson, almost hahbitullly indulges in the exerwise of his oflicial functions, to
brinig thle high aof,r, im1ortat office he holds into utter (ldgradlation anId contemnpt.
I have not the testimony here of some of the witnesses that testified
on that point.  AIr. Fox, in testifving about that, states that the words
were soimethiing  simni.!,r to that.   Ie Says nothing about the " pejury,"
or the "lie.!" oI  "causing his client to lie," but wouls similar to that.
That is what ther aUll will testify when it comes  to tlvse hash words,
put down here as having been used.  None will swear positively to the
fact, but woriI,s similiar to that.  Now, instead of telling a pei'soln he lies,
to tell him lie has been mistaken, and it is a mistake in this matter,
some pe'rsons  would say it was tantamount to telling a lie.  Now, they
want us to infer they  believe this word "lie" w'ias us'(d, though  none of
them will state tlhe exact language.    Ir. Fox told you it was in the case
of Isacey ",'. Gale.  The Clerk says he was in court during the tiale, and
he did not hear any such words.  Mlr. Fox says it was in that case.  Mir.
Ponder, the Clerk, says he was there during the trial, and no such words
were passed-he did not hear them.  fMr. tI(cks t,ils  you as Mi. Fox.
I had the paper in my hand.  MIr. Fox tells you he had been offering, anll
adliitional answer or arlidavit, and I held the paper in my han(d; and
Bedford testifies to that  too, and I asked Mr. Fox if this was in lii,hand
writing, and he says it may be.  Then they say I told him  he lied, or
caused his client to lie; but they won't say that it was those words, but
only to that effect.  I said to Air. Fox:, of these two things you have writteil, both cannot be true; one must be false.  They want to make it
out. "if you signed this paper, you either lied, or caused youri client to
lie."
Now, it seems there was some business going on in coti neciol  with
the pa,peri I had, and MIr. Fox had drawn up another answer.'rll(e paper I held in my hand was an ainswer drawn in a former actionii upon a
note,-wheriein the answVer stated the note was given for a corta'tn consi,leration, on the payment of goods or something of the sort-, —filed at
this term of the courts.  lie had failed to get judg'ment.  lie (Il.essed
I-ro) 6 7 
HIGH COURT OF IMPEACHMENT.
up an answer, and makes a man swear he never gave the note. The
former answer contradicted this. I had that in my hand as he was preparing the new one, and as he was about to swear this young man to it,
it being drawn to my attention that he was just going to swear so as to
contradict the other-says I, " AMr. Fox, one or the other of these is
false.  If you make him swear to that, you make him contradict this."
Was there anything improper in that?  I saw it going on before my
face.  Was there anything wrong then, if I had spoken in harsh terms
to Mr. Fox about it?  You all know the immense influence an attorney
exercises over his clients. They will do anything their attorneys tell
them and think there is nothing wrong in it.  I saw what Mr. Fox
wanted to do, and I had time to anticipate and prevent that young man
from making a false affidavit.  I used the language, that "if he made
him swear to that, one of them was false." The testimony does not extend any further thani that, and shows just about that state of facts.
Was there anything criminal in what I did there?  And then, too,
"guilty of perjury and subornation of perjury."  They use two terms
without any need for either.
ARTICLE VIII.  That said Albert Jackson, Judge as aforesaid, forgetting the
dignity of his office, and regardless of his sacred obligation to demean himself
faithfully and imspartially therein, did, on the trial of one G-reen DePriest, on an
indictment for resisting anl officer ill the exercise of his official duties, had at a
Circuit Court begun and held at the town of Thomasville, within and for the
county of Oregon, on the third Monday in April, A. D. 1858, whereat he, the
said Aib)rt Jckson, presided as Judge, conduct himself willfully partial and
corrupt, and hidihly unbecoming and disgraceful to his high official position:
.st. In privately advising one James V. Odell, a lawyer, to procure said
DePriest to employ him, the said Odell, as his counsel, and to take a contingent
fee to defend him;: that said DePriest could not be convicted on the indictment
pending against him for resisting the officer, because he had already been convicted of disturbing the peace of a family, which was charged to have been done
at the same  time he resisted said officer.
ieco l. in o0cial]y and voluntarily advising said James V. Odell, as counsel
for said DePriest, to plead a former coinvictiosi; which said advice said Albert
Jackson, presiding as Judge, gave said Odell in open court, upon the trial.
ThiecI. In partially and corruptly transcending his duties as Judge, on the
trial of said DePriest, to such an extent that the Circuit Attorney, prosecuting
for the State, abandloned said cause, and entered a "s itolle prosequi."
Nowv, here in this case, gentlemen, there is this about it.  There is no
evidence that there was such a case ever tried there.  Most certainly
the record should be here to show the fact, at least, as to what was done
upon that suit, and whether there was a nolse pros3eoi entered or not.
Here you take the testimony of witnesses that such proceedings were
had in court. I have no objection to what I said outside of the court
being testified to orally.  But if there was a n,ole prosequi against De
Priest, the record ought to show that, or at least there ought to be no
evidence about it. To get up a case which there is no record of. and
then get up certain facts to agree with it, is an improper course of proceeding.  Well, we will see what Mr. Odell says about that:
Q. Were you in court during the trial of the case of the State rs. DePriest?
A. Yes, sir. I was counsel for the defendant.
Q. Mr. Odell, did you have any conversation with Judge Jackson in regard to
that ease?
A. Yes, sir, I had a conversation. I don't know that I had a conversation
with the Judge about it, but he had with me.
Q. Well, what was it? what was said?
A. Mr. DePriest had been convicted of disturbing the peace of a family; well,
I don't know, he was either convicted or plead guilty, and at the same time was
indicted for resisting an officer. The conversation the Judge had with me was
368 
.JUDGE JACKSON'S ARGUMENT.
this: Hle observed to Mr. Hull, or myself, that we could safely take a condi   tional fee in the case; that there were two distinct indictments, and only one
offense, and that that would be a good plea.  I did take the case, but being quite
young in the practice, I didn't make a plea of a former conviction, but moved
to quash the indictment, giving the former conviction as a reason for the motion.
The motion to quash was overruled, and the Judge said that was not the way to
do it.  The Circuit Attorney entered a nolle pro.sequi.  I got the fee.
Q. Were you employed at the time of the conversation?
A. No, sir. DePriest came to ine afterwards.  It was his son that employed
me.  Solomon DePriest, the old man, was not there.
Q. You took the case then after this conversation with the Judge?
A. Yes, sir. I took it, as the doctors say, on the principle of "no cure no
pay."
Q. Was the Circuit Attorney by at the time the Judge had this conversatien
with you?
A. I don't remember.
Q. Did the Judge make that remark, that you could safely take a conditional
fee, when the Circuit Attorney was not present?
A. Yes, sir. I recollect now that he was not there.
Q. Who was the Circuit Attorney?
A. Johni L. Woodsides.
Q. After your motion to quash was overruled, did the Judge advise you to
plead a former conviction?
A. Yes, sir. I think he did.
Q. Who was in the case with you?
A. I was alone.
Q. Ihow did the conversation with the Judge come up?
A. Mr. Hull, and the Judge, and I were in a room, and I don't know  how i'
came up.
Q. Did you suggest the facts to the Judge, or did you commence the conversa
tion about the case?
A. No, sir, I did not.
Q. Was the nature of the two offenses charged in the two indictments the
samr e?
A. I don't remember much about that.
CROSS-,XA,MINED BY JUDGE JACKSOX.
Q. Was that the first court you attended?  Did we get together there the first
time?
A. No, sir. We got together first at Greenville.
Q. Was not Mr. Hull with you when we met at Greenville?
A. No, sir.  Mr. Hull joined us at Eminence.  We then went with you through
to Thonmaville.
Q. Was not Woodsides in the company going from Eminence to Thomasville?
A. I do not remember.
Q. Well, at the time the conversation occurred, were not you and Mr. Hulll
talking and complaining that business was dull, and then didn't I say, "now"
young men, here is Green DePriest is indicted twice for the same offense, and
you mi ght get a fee from hilm?"
A. I don't know that the conversation came up that way.  It might have
been so.
Q. Ddn't I tell you my impressions were that the two indictments ere for
the same offense, and that if I was correct in my impressions about the facts,
you might safely take a fee in the case?
A. It is likely you are right, Judge.
Q. Didn't you say DePriest wouldn't employ you, and wasn't it then I told you
you might take a conditional fee?
A. We had a long conversation about it, and it may be as you say, though I
don't remember.
Q. Didn't you make a motion to quash on the ground that there was no legal
offense charged, or something of that kind?
A. I don't recollect.
Q. Was not Mr. Hull with you in the case?
A. That was not mly understanding.
Q. low much did you charge him?
A. I charged him five dollars, but it was not enough.
24
369 
HIGH COURT OF IMPEACHMENT.
Q. Didn't you divide the fee with Mr. Hull?
A. No, sir. Hie claimed the right to half of it. He pretended like I agreed
to divide with him, because he was present when the conversation took place;
but I told him it was not enough to divide, and that if I had to give any of it to
him, I would live it all.
Q. Well, when you made your motion to quash on the ground that there was
a former conviction, was it not then that I suggested that that would be a good
ground of acquittal?
A. Yes, sir, y ou did say that that would be a good ground of acquittal.
Q. When ne were talking about it, didn't I tell you that if my impressions
about the facts w-ere correct, you migniht go into the ease whether you got a fee or
not, and that you would get the glory of acquitting him, which would( be worth
as much as the fee?
A. I think you did tell me something like that.
Q. And you did get the fee?
A. Yes, sir. I know I got it, and IIull raised a fuss with me because I wouldn't
divide. LLaughlter. ]
Mr. K-OTT. Was it in consequence of advice given you by the Judge that
you undertook the defense of the case?
A. Yes, sir; it was.
Now, there is no evidence of any such case at all.  If a person was
up on an indictment for perjury, must not the case in which he was
sworn,-would not the record of that court have to be introduced?  He
gives testimony about a case in which I am impeached, and without a
record to show there was any such a case. Presumptions are always
against the party that might make use of anything.  If there is a record, and they do not produce it, the presumption is that it makes
against them. That's the law.
Was there anything wrong in telling young Odell that?  Certainly,
when that case came up, if the man had already been convicted for an
act, and the last indictment was based upon the same act charged as a
different offense, I should have ordered the attorney to enter a e?ollc
piroseT,i, and would not have allowed the man to be convicted twice for
the same offense.  This I hold would have been my  duty under the
statute. which expressly provides that a person shall not be convicted
twice for the same offenise.  And  the constitution  also makes that
provision. Would it not then be the duty of the Judge to state that
fact, and not permit him to be convicted twice? I should do it. I do
not think I ought to be impeached for doing so.  It is the duty of the
Judge to point out the law, and to appoint attorneys, and tell them
what to do.  Now, gentlemen, the law provides that when a person has
no attorney, the Judge shall appoint an attorney.   If the Juldge
shall happen to tell the person himself there is a certain matter in
that case, and if you cannot employ an attorney, you need not
employ one, what wrong is it?  How often  I have attended court
in that circuit when  there was not a single  lawyer  in his seat!
How could I dispose of the business except by taking it upon myself to
act the part of an attorney?  I was at court at Eminefce when there
were three State cases on the docket.  There was no Circuit Attornev
or other attorney there.  I had to make an order the same as though
there was an attornev there, and I suppose I ought to be impeached for
that! It may be a Judge acts differently from what you rnemibers of
the Senate would, but if he did not do it from a corrupt motive, it
is not impeachable. In this case I would not sit by on the bench and
see a Sheriff, or Circuit Attorney, or other man, get a conviction against
a man twice in the same case. And in this case, if there was such a
case, and there is no evidence of that, I did not think Mr. Woodsides
would do it. I think when i- saw it was the same case, hlie entered the
nolte of his own accord. The record is not here, and we can tell
nothing about it. What corruption is there in that? Even if it is as
3i 0 
JUDGE JACKSON S ARGUMENT.
he says, and there was such a case, I told him merely to look into it,
and if it does exist. take advantage of it on the trial. Was there anything corrupt in that?
The hour for adjourning having arrived, Judge Jackson announced
that he would conclude his argument in the morning.
On motion of SEXATOR GOODLETT, the Court then adjourned.
FOURTEENTHI DAY.
TUESDAY, June 21, 1859.
The Court met pursuant to adjournment, and was opened by proclallation.
The managers and respondent attended.
JUDGE JACKSON, resuming his argument, said:
GENTLEMIEN: I presume in what further I shall have to say, I shall
occupy your time at farthes.t not miore than hour.  With regard to arti  cles nine and ten, three cases of habeas corpus, I can only say, my acts
in those cases are fully shown upon the papers themselves.  The peti tions and returns of the officers to my order are before you, and that is
all I have to do with it.  There was some outside testimony with regard
to what was done in the Main case; and in the Russell case it has been
testified that particular papers were brought in and handed to me. The
testimony shows very clearly that the witnesses, at least Mir. Tyrell and
Mir. Jackson, are mistaken.  They say of the papers that the Constable
brought them in, and laid them down on the table before me.  They
said I told him these papers would contradict his return.  Hils return
then had been made to the writ, and that is all I had to decide from.
There was no contest about the returns, and it was simply presented to
nme that he had Russell in custody by virtue of a verbal order. Now, if
he held them by any other authority, my discharge did not affect that.
But they are mistaken about this.  Loo;. at what Mir. Tyrell says about
it. iHe says when this camie in it alarmed him.  Hle knew they were in
existence.  He says he was alarmed when they were laid before me.
And MIr. Eaker says the papers were just then written. What becomes
of the assurance that M:r. Tyrell knew these papers were in existence?
And moreover, Mr. EAaker tells you when he handed the papers to#ryts,
Cryts told him the defendant was already discharged. And so Mr.
Tyrell comes in and says he was alarmed when these papers came in,
because he knew they were in existence, and he was afraid his man
would not get clear! If I was going to discharge the fellow anyhow, it
would not affect him.  Why should he be alarmed?  lie knew they
might come in, and at the time when he says hlie knew they were in existence they hadn't been written; and then undertakes to say further,
that I knew all about it. And the testimony of Eaker is, that he did
not deliver them.  Now, why does he say that he never thought I had
done wrong until after this matter started? I recollect upon his testimony he got mad, and said I was disposed to injure him; but it did not
affect me any way. I could only act upon the return of the officer.
371 
ItIGH COURT OF IMPEACHMENT.
In this Atterbury case-that is for not granting a writ when it should
have been granted.  Now, gentlemen, what I have to say is, just take
that paper for yourselves and read it. It is signed by William M. Atterbury:
To the Ifonorable Albert Jackson, Judge of the Fifteenth Judicial Circuit in the
State of Missouri:
The undersigned, your petitioner, respectfully makes known to your Honor,
that one William W. Atterbury is restrained of his liberty at this time by, he
believes, Henry Noble, Sheriff of Dunklin county, and cx ofticio Jailor of said
county; and he believes that said Atterbury is imprisoned in the jail of said
county; that said Atterbury was taken and delivered to said Jailor by one David G. Hicks, on the pretense that he had a capias for him on the charge of embezzlement, which petitioner well knows said H;cis never had, though he
believes that said Atterbury is indicted in the Circuit Court of said county for
embezzlement; that he prays your hloinor to issue a writ of habeas corpus to
bring said Atterbury before your Honor, that he may give bail, which he is able
and willing to give in Bloomfield, as two good and solvent men will go his bail,
but is unable to do so in Dunklin county. Petitioner does not present a copy of
the cause of detention, from the fact that he has had no opportunity to apply for
the same.
And, in duty bound, he will ever pray.
[The 5th section of article 1st is not complied with sufficiently.]
William M. Atterbury, the above named petitioner, makes oath, and says that
the foregoing petition, and the matters therein, as stated, he believes to be true.
WILLIAM M. ATTERIBURY.
Sworn to and subscribed before me, this first day of February, 1858.
REUBEN P. OWEN,
Clerk Circuit Court of Sftoidard county, Jlisisouri.
The very man who says he did not know whether he was in the custody of the Sheriff or not, and signs the petition that he believes he is,
and does not know whether he is or not!  Was there ever such a petition ever presented for a writ?  And this I refused to grant.  Then what
was the outside circumrstanc(es of the case?  Why, Mr. Noble comes in
here and tells you that Atterbury was not in his custody, and that he was
here in Jefferson City, and he had no deputy in Dunklin county. And
further testimony is before you showing that Atterbury was never in
iail, but that he was brought there on one afternoon, and the next night
but one he broke away, and that was the last of it.  A man breaks custody, goes up there in Bloomfield and gets this petition out, and don't
know whether he was in custody or not! Now have I ever refused improperly to grant a writ?  What does the statute provide?  Now if they
believed I laid myself liable. would not they have proceeded against me
as provided by statute? Mr. Phelan's testimony is that I lefused to issue
it because Mr. Hlicks was improperly inserted there.  I think I might
have stated that "the fifth section is not complied with sufficiently."  I
believe this is the reason I refused to grant it, and no one will say I improperly refused to issue a writ of habeas corpus on that petition. You
can only say I was mistaken.  If there was injury d(one to the prisoner
who made application, he could have proceeded against me under the
statute.
The writ of Main, and return, shows that he was discharged because
the mittimus was not sufficient authority for detaining him in custody.
Now, if there is anything improper in all that, I do not see where it exists.
It was my duty to act upon it, anrid I did it to the best of my ability. In
the Russeil case, the evidence is clear about that, even if this discharge
372
IVILLIAAI M. ATTERBURY. 
JUDGE JACKSONIS ARGUMENT.
paper has anything to do with it.  Mr. Eaker himself says he never made
it out until after the prisoner was actually discharged.  There was a
conflict about the discharge before the papers came.  I had acted upon
Russell's just as upon Main's, and had discharged them, and I wrote out
the orders sometime afterwards. I did not write the discharge of Russell until after I disposed of the other case.  I may have been writing
the orders when these papers were laid down on the desk. What had
I to do with the papers?  The prisoners were discharged then.
The eleventh article is about instructing the grand jury with regard to
a certain matter. I will read it:
ARTICLE XI. That at a Circuit Court, begun and held at the town of Bloom field, vithin and for the county of Stoddiard, on the third Monday of November,
A.D. 1858, whereat the said Albert Jackson presided as Judge, the said Albert
Jackson, disregarding the duties of his office, did descend from the dignity of a
Judge, and stoop to the level of a comnmon iniformer, by calling the attention of
the grand jury, enpainneled and sworni for that county, at said court, during his
public charge to them, to the fact that he, the said Jackson, had understood that
a certain citizen of said county had gone to Jeffers,on City and pretended to
transact some business for said county, in relationi to obtaining some certified lists
of swamp lands; that he had obtained a warrant upon the County Treasuiry for
ene hundfred and seventy or seventy-five dollars, and that if the facts were as he
understood them, they constituted the crime of obtaining money under false pretenses, which was punishable by imprisonment in the penitentiary, and that it
was the duty of said grand jury to make diligent inquiry of said case; that the
man to whom he alluded was a lawyer, and that they, the grand jury, could
find out who it was by asking the County Treasurer wh<) had obtained a warrant
for a hundred seventy or seventy-five dollars; whereby everybody there, and
those present, understood him, the said Judge, to mean Solomon G. Kitchen, a
citizen of said county.
And by appearing before the said grand jury, in their room where they had
retired to consider of presentments, and then anid there again telling them it was
their duty to make diligent iinquiry of said facts; and that if they found the facts
to be as he had understood themn, they should find an indictment against the person who had obtained the warrant. and that Solomon G. Kitchen was the man
who had procured the said warrant; thereby rendering his high functions as a
Judge subservient to a low personal malice, and seeking, under color of his official
duties, to wreak his own private vengeance, by affixing to the reputation of a
personal enemy the imperishable disgrace of a public prosecution for a felonious
offense.
Now, what was the testimony to sustain that? It is, that in my charge
to the grand jury I directed their attention to certain facts which I un derstood existed, and directed them to inquire into and see if they did
exist; and said if they existed, that the person, whoever it was, ought
to be indicted. If he obtained that warrant under false pretenses, it was
an indictable offense. As in all this I did nothing more than discharge
my duty, I cannot admit that I did wrong. I would have to do the same
thing under simnilar circumstances, let who would be the object osubject
of my remarks.  It is my duty to instruct the grand jury.  If I know of
any particular offenses in that county, it is my duty to direct the attention of the jury to them, and state what the law is in regard to them;
and I would not discharge my duty officially if I did not. Because the
person should happen to be so designated that there was no mistaking
as to who it was, is no evidence that I had any personal malice against
Mr. Kitchen, and it would be a singular state of things if a Judge must
refrain from charging a grand jury because the person against whom he
charges is his enemy. It would look as if he was making a personal
matter of it.  A Judge that would refrain from discharging his duty under such circumstances, would be unworthy of being a Judge. Because
a person is an enemy of the Judge, he should not set a jury upon him;
but to refrain because he was an enemy, for fear persons would say he
373 
HIIIGI COURT OF IMPEACHMENT.
was trying to wreak his private vengeance upon the man, all sensible
persons know to be wrong.  Now, if the Senate feels any interest about
the matter, let the Senators go down and ask the Secretary of State to
say if what he said was right and coincided with the fact. He said lie
had paid money before he got the warrant. The Secretary will tell you,
and did state, that if he ever paid the money at all, it was not paid until
the next winter. This was a matter the county was interested in. I
supposed there had been a violation of the law, and told the grand jury
to inquire into and ascertain the facts. And that is all 1 have to do
with it.
Article twelve reads thus:
ARTICLE XII.  That the said Albert Jackson, Judge as aforesaid, at a Circuit
Court,  begun and held at the town of Poplar Bluff; within and for the county of
Butler, on       the first Monday in November, A. I). 1S57, whereat said Albert Jackson presided as Judge, was willfully and maliciously guilty of gross inisdemeanors and abuse of official authority:
First. In refusing to suspenad the Clerk of said court and appoint a temporary
Clerk thereof, although he well knew that said Clerk was guilty of a misdemeanor in office, in not being present and attending to the duties required of
him by law, and should therefore be suspended, and although he was earnestly
requested by nearly all of the lawyers present to appoint at temiporary Clerk, in
order that tihe business of the court might go on.
Second. In refusing to try any cause pending in said court, civil or criminal,
at said term, regardless of the consequences upon the rights of parties litigant,
and attorneys.
Third. Ill taking possession of the papers pertaining to causes triable and
amenable at said term, and arbitrarily refusing parties and lawyers access
thereto.
Fozzrbh. In peremptorily discharging the grand jury, which had been emnipanneled, sworn a'nd charged to inquire, in and for the body of said county, at said
term, notwithstandinig members of said grand jury informed said Judge that
they had a large amount  of business before them; that they had sent out subpenas for witnesses to appear before them, in relation to various matters of'- which
they were inquiring, and did niot desire to be discharged; and notwithstanding
this was but the second day of the term, and said court was allowed a whole
week in which to hold said term.  All of which misdeme.anors were intended to
oppress and harrass the parties and lawyers, and calculated to impair public
confidence in the elciacv of the constitutional guaranty "that justice shall be
administeted without sale, denial, or delay."
This shows what influence lawyers have. and what the law is.  It
was my duty to appoint a temporary Clerk, and they undertake to
say that if I did not obey the law in this matter, I am to blame. Then
it is to be looked into, to see if I lawfully did it.  Now, I would like to
see the law. The testimony is this: that on the first day of the Court,
the Clerk was there discharging his duties.  Business went on; cases
were decided; lvr. Woodsides was there; a jury trial comes on and
lasts till dark; on the second day of the term the Clerk is not present.
They then undertake to say he was drunk.  It may b  that I understood that it was so at the time, though no person had told me who had
seen him so.  At any rate, he was not there discharging his duties. I-e
had been there the dlay before.  Now, what is the law for the court to
pursue in a case of that kind?
SECTION 23. If any Clerk shall, knowingly and willfuilly, do any act contrary
to the duties of his office, or shall, kInowingly anld willflly, fail to perform ally
act or duty required of hims by law, he shall be deemed guilty of a misdemeanor
in office.
SECTION 24. VWhen any court, or the Judge or Judges, or a majority of them, in
vacation, shall believe, from their own knowvledge, or fi'om  the information of
others, on oath or afirmation, that the Clerk of the court In which thley preside,
has been guilty of a miisclemneanor in office, they shall give notice thereof to the
374 
JUDGE JACKSON'S ARGUMENT.
Attorney General, stating the charges against such Clerk, and requiring him to
prosecute the same; and they may suspend such Clerk from office until a trial
can be had, and appoint a temporary Clerk, who shall possess the same qualifi cations, take the same oath, and give the like bond as other Clerks, and who
shall possess the same power, perform the same duties, and receive the like fees
as other Clerks, and shall continue in office until the regular Clerk shall resume
his office, or a successor shall be elected.
Then I should have had information that he committed a misde meanor. All that I knew about it was he was not there. There was no
notice given to me that he had been guilty of a misdemeanor. I did
not know it of my own knowledge, and there was no charge exhibited
against him, and there was no request made for me to do so.  It was
simply this: As far as I knew, the Clerk had been there on the day
before and discharged his duties. On the second day, he did not come.
To be sure he might have been drunk. That I knew nothing about.
There was nothing said to me about it though.  Mr. Phelan says he told
me he was drunk.  "If there is any particular business which you want
presented," I said, "I will keep the minutes and make them up." The
next thing Mr. Bedford came in and asked for the ruling upon the Clerk
for papers, as though I could do it. The court finally adjourned. Mr.
Phelan says he lost three or four hundred dollars, at least. Hie had a
clainm for thirteen hundred dollars. What a percentage would he have
had! I wonder if the merchants of St. Louis give that percentage on
notes. But let us examine a little further. From Mr. HIenderson's
testimony, we learn that there was a mistake; he had not brought the
suit right. Hie didn't insert the names of the parties, and consequently
could not have got a judgment in that court. He had a mind to insert
the names of the parties, but he only put it Ewing &  Co.  And this
IMr. Henderson lets out the fact that Mr. Phelan's clients wrote to him
not to pay Mr. Phelan, as he was not the man to do it. Now, what becomes of this loss?
I never suspended this Clerk, because there was no  information
against him.  MAr. Phelan says he did come and tell me himself.  wow,
about M,r. Phelan's testimony; he says that up to the time of the  last
County Court, throughout to the end, no cause of suspension existed.
Now, what becomes of all these charges of neglecting to suspend him,
and of having notice of his misdemeanor, when Phelan swears there had
never been notice of his misdemeanor up to this day, or up to the time
he left the State? There is another little article connected with this.
Mr. Phelan swears positively in this matter; and now they say I was
applied to to appoint.  Now, what is the law in that particular?
SECTION 22. Every Clerk may appoint one or more deputies, to be approved by
the Jtudge or Jud(ges, or a majority of them, in vacation, or by the court, who
shall be at least seventeen years of age, and have all other qualifications of their
principals, and take the like oath, and may, in the name of their principals,
perform the duties of a chief Clerk; but all Clerks and their sureties shall be
responsible for the conduct of their deputies. 
Now, then, the Clerk may appoint a deputy, and that deputy must be
approved of by the court. ~No court has a right to appoint a deputy
over the Clerk.  He is responsible for the duties of his office.   The
court cannot appoint a deputy without his consent.  That is what they
attempt to make me liable here for, because that application was made
to me to appoint a deputy, and I refused to do it.  Now, we will read
this documenft:
To th,e Ilonoi-a.ble J(cZge qf the Ftccnth Circuit:
The undersign.ed being unable to act as Clerk at this time, wouldll respectfully
recommend to your Ilonor, Donaldson S. Walker, as a fit person to repre sent him
[Signed,]                            JACOB C. BLOUNT.
375 
HIGH COURT OF IMPEACHMENT.
I do not suppose any person could go into the office of the Clerk and
transact business of importance. They could probably get along better
than without any Clerk, but what good would it have done to appoint a
Clerk at that time, to assist in the business of the court?  Now, Mr.
Phelan says he took this down.  I thought at the tinme this document
was the best evidence of the Clerk being drunk.  I di;dn't think a sober
man would have signed such a document, asking me to appoint a deputy.  I took it for granted Blount must be drunk to ask me to appoint a
deputy. Now see just what kind of a man Phelan is to sweai,-how
reckless he comes in here and tells you this is his handwriting, and that
Blount signed this himself, and his wife held him up in bed while he
put his name to it. Here is Bed-jford, well acquainted with Blount's
handwriting, and Lawson, who knows his handwriting, and they swear
they do not believe that is Blount's handwriting.  Buffington comes up
here and swears he does not believe this is Blount's handwriting.  You
can see that the man that executes this must handle a pen better than
Blount could, and yet he swears Blount was so drunk he could not sit
up in bed! Now, what is the testimony of such a man worth? I am
going to go through it a little, to show, not what it proves, but the manner of getting it in.  But here is the fact.  I never thought of it that
day until he was swearing that Blount had signed his name to it.  I
supposed it was about this way: that Blount told some person to sign
his name to it. It was the body of this instrument I was going by. I
supposed PBlount was so drunk he could not write, and he told some
bystander, and it would have all been right hadn't Phelan sworn so
positively that Blount did it with his own hand.  It excited suspicion.
I inquired into that matter, and found that all acquainted with Blount's
handwriting swear he never did sign it.  That goes only to Mr. Phelan's
testimony, not to the facts of it.
Well, so much about that matter.  I do not see that I have been
criminally negligent of any duty with regard to that transaction.  You
have heard the testimony of Mr. Dennis about it,-that I gathered up
the papers, and had them a while under my arm, and finally, when I
went away, when court was adjourned, I took Mlr. Dennis into the office,
separated the civil actions from the criminal, sorted them as well a,s I
could, told himll when Blount came to show them to lim, locked the
door, and gave him the key to give to Mr. Blount, and he did so.  And
if that was not doing all I could, I am at a loss to know what more
could be expected. I do not think it was criminal in anything, with
regard to my duty, though it is brought up here as a charge of official
corruption in office.
ARTICLE XIII.  That the said Albert Jackson, unmindful of the dignity of
his position as a Judge, and disregarding the restraints imposed by his said office,
did, in the month of October, A. D. 1857, privately counsel and advise one William Ringer to sell all the county warrants that should be issued, in payment of
a contract which said Ringer had with Stoddard county for thebuilding of a
court house, and put the money in his pocket, and then bring a suit for damages
against Solomon G. Kitchen, the commissioner, and assured him he could recover
in such uit; endeavoring thereby to incite a vexations and expensive suit in
the court of wbhich he w,is himself Judge, for the purpose of annoying, harrassing, and oppressing said Solomon G. Kitchen.
Well, I think that would have been a singular kind of suit, to be
brought after he had been paid; after he had got his pay in warrants.
If a person cares to turn around and sell them, and then bring an action
against another man for them, it would be but frivolous.  How the conversation affected Mir. Kitchen I can't see. The testimony of Ringer
amounts to little. He said I said something about the warrants. Ile
:ays I might have asked him if he hadn't sonme warrants. I knew while
376 
JUDGE JACKSON'S ARGUMENT.
he was telling me I did not recollect anything about the conversation,
and could prove it was not in October.  I only did that to prove the
fact that if he is mistaken in one thing, he is in another. I can prove
I was not that year in Stoddard county during the month of October,
and very little in November. I left the county on the last Monday in
September. and did not go back until the second Monday in November.
Woodsides testified to that fact.  Now if Mr. Ringer is mistaken in this
matter, he may be mistaken about the conversation, and in the very
material parts of it. I do not think it amounts to anything one way or
another.
The fourteenth article reads thus:
ARTICLE XIV.  That the said Albert Tackson, Judge as aforesaid, was, at the
Circuit Court begun and held at the townl of Doniphani, within and for the county
of Ripley, on the fourth Monday in April, A. D.  1858, and on the trial of one
William KiRnsey, for grand larcenv, which trial was had at said court, whereat
said Albert Jackson presided as Judge, willfully and maliciously guilty of great
oppression, nsiscond ct, and abuse o  oofficial authority, corruptly intending thereby to e.ibarrass  and ol i1ress the counsel of said Kinsey, and procure his conviction
h'ir so. By arbitrarilv refusing to allow said Kinsev's counsel time totake down
the testimony of the witneusses nintroduced on said trial.
Second. By repeated interruptions of the counsel for said Kinsey during said
trial, tending to harrass and embarrass them.
Tilird. By the frequent use of rude, insulting, insolent, and discourteous expressions towards said Kinsey's counsel during the trial.
Iouirth. By pereiptorily stopi)ig one of said Kinsey's counsel in the midst
of his argunicenit t,) the iury,,a:(d oideiing him to take his seat, although said
counsel (David M. Fox) was in the discharge of his proper and lawful duties.
Now, with regard to the first head,-the refusal to allow the taking
of testimony,-it wvas simply this:  The witness was going on to make
his statement, and they stopped himn to take down his testimony.'I'hat
I deem was the usual way. I thought it was perplexing the witness,
and had announced a different rule,-that a witness might go on to
make his statement of his testimony until he got through, and then if
counsel wished time to take down the testimony, they might have the
time, and the witness should stay there to take down his testimony. I
think this is the better way. It embarrasses the witness to stop every
minute or two to say a few words. I thought the best way was to take
the statement, and if the lawyers could not takle it down as fast as he
made it, the rule operated on one side as well as the other. It operated
on the counsel for the plaintiff as well as on the counsel for the defendant, and on the defendant's counsel as well as the counsel for the plaintiff.  There was no partiality in the matter.
The only proof of any interruption of a,ttorneys in that case is with
regard to MIr. Fox.  You have heard the testimony in that, and what it
was-that I told him to take his seat, and not interrupt me in that way.
It is not alleged or proved that it occurred with any other attorey.  Now
what is the proof-what is the testimony in that case?
Upon this second trial of the Kinsey case, Mr. Joseph White volunteered to
prosecute.  The evidence in the case was altogether circumstantial.  In my argument for the defense, before the jury, I took occasion to comment or reflect
upon Joseph. It had leaked out during the progress of the trial that this Joseph
had volunteered his services in the prosecution. In my remarks I played upon
the name of Joseph some. I said that I suplposed that he was named after Joseph
of old, and that out of respect for his great prototype, who was himself the victim
of circumnstantial evidence, he ought not to undertake to forward the perpetration
of a similar wrong.  I carried this allusion to some extent; spoke of the fact that
the father of Joseph the prototype, when he heard that his son was in Egypt,
could not believe that it was true; and in sonne manner which I am not now able
877 
HIIIG  COURT OF IMPEACHMENT.
to detail, I instituted a comparison between the father of the prototype Joseph
and the prosecutor in the case, saying that as the one could not believe in the
existence of his son, so the other, when he heard of his hog, would not believe it
to be the same.  In my further remarks I spoke in an ironical strain of a grand
inquisitorial body sitting in judgment upon this hog matter, and in this connection I did refer to Judge Jackson. Before this, however, I should have observed
that my time had been limited to an hour and forty-five minutes.  When I came
to speak, ill the ironical strain that I have mentioned, of the grand inquisitorial
body, the Judge interrupted me and asked me to explain myself, and say whether
I meant him. I replied that if he would not discount or offset mry time, I would
not explain.  Afterward,-I don't know what gave rise to it,-he abruptly told
me to sit down. Whether this grew out of what I had been saying in my speech
I will not undertake to say, but he did order me to sit down. I then told the
jury to see what a poor chance my unfortunate client had, and that my only depenldence for getting justice was in themn, and complied with the order of the
court by taking my seat.  And, gentlemen, I believe it was the best speech I
ever made in my life.
Now here is Mr. Fox's statement.  He tells you he spoke ironically,
alluding to the Judge as an inquisitor. Hle says I asked him if he alluded to me. Hle replied that he would make no explanations unless I
deducted the time out of his speech. From his own words we see he
was certainly acting improperly in court, to announce before a jury that
the Judge was acting corruptly on the bench.  Could any Judge submit
to it without calling him to order?  iNow, what does Mr. Kittrell, and
the Clerk, and MNr. Ilicks, say about it?  The statement of Mr. Kittrell
is, substantially, that Mr. Fox was exceeding his time.  He would talk
about this Joseph in Egypt instead of talking about the case. I told
him to confine his argument to the case.  He went on, and I gave him
some minutes longer,-gave him -all the privilege a lawyer could have,
and he exceeded that time, and did not progress any in his argument.
Hie was still dwelling upon Joseph. I again directed his attention to
the ease, and extended the time a few minutes longer. 1H1e still alluded
to Joseph in Egypt.  I told him to sit down.   That is what Mr. Kittrell
says. He says, moreover, he thought Mr. Fox was a little intoxicated
and Mr. Fox himself says he did not know what he was doing. Go on
further and look at the Clerk's testimony.  He is more minute than Mr.
Kittrell.  He says he had been limited.  He was called,-his attention
was directed to it, that he was exceeding his time, and still I was disposed to let him go on, and at last he made use of such expressions, and
in such a way, that I told him he must stop.  And, says Mr. Ponder, "he
was under the influence of whisky." Mr. Hicks was a young man whose
memory is pretty good. Hle mentioned an instance about the Sheriff
rubbing against him, and the assaults of the Sheriff, and he represents
how he was going on.  Now was not he certainly out of order, and was
it not my duty to call Mr. Fox, under these circumstances, to order?
Was I acting harshly?  Was not I forbearing towards him?  And he
says he was making the best speech he ever made in his life!  If that
was his best speech, what have I not been subjected to?i listening to
him make other speeches! What have I been subjected to in setting
on the bench, and listening to him go on in that way! i Now, was I guilty
of what is said here,-of " repeated interruption of said couns(el?"  Mir.
Fox states that at one time it was harsh, rough language, and manner.
I will allude here to a little incident about Mr. Fox.  about his good
speeches, and good conduct.  What was his manner in addressing the
court?  "It was the same style of coolness, candor, and respectful address in which I am now speaking."  Those are his words.  Any person
acquainted with Mr. Fox would know he was doing the best in the
world he was capable of, and that even then, when he was speaking "' in
the same style of coolness and respectful address," he was out of order.
378 
JUDGE JACKSON'S ARGUMENT.
So when Mr. Fox is doing his best, he is out of order.  But for doing this,
I am charged with peremptorily stopping counsel and ordering him to
take his seat, " although said counsel was in the discharge of his proper
duties"- I was wrong.  Mr. Fox, during this course,-was he in the discharge of his proper duties? iNow these are frivolous charges, and this
is one of the particular charges against me of abusing attorneys. And
in all these they have not proved an attorney was in court. Suppose it
was an indictable offense, and the statute provided that if a Judge shall
speak insultingly and disrespectfully to an attorney, hlie shall be fined
and imprisoned,-suppose he should be indicted for it, should not the
indictment state that such a person, being a regularly licensed attorney,
in the discharge of his duties, was then and there insulted by the Judge?
Would he not have to prove he was an attorney by producing his license, and by producing a copy of the record to show that he was enrolled,
and had taken the oath of an attorney?  They simply come in here and
say "I was an attorney in such a case," and it seems there is not a case
they would not testify to before they were attorneys in the case. There
is no evidence but their say-so. I believe there is nothing further about
the interruption and disrespect, and insulting and tyrannous manner.
About that AMr. Phelan complains, I investigated that yesterday afternoon.  I was informing him of a fact that he was not advised of.  I
proceeded as I conceived according to law.
Now here is another series of ofifenses of which I am accused of being
guilty,-for not signing bills of exceptions. There is the case of Moore
against Eldridge.  There is the Buckner case, and the Griffie case, and
the Whitehead case, and one case in  lipley county.  The charge is
here:
In refusing to sign a bill of exceptions duly tendered to him by counsel for the
said Moore, unless it was made to show that certain facts were proven that were
not proven on said trial."
Now the record of that case is not here, as it should be, to show there
was any such a case. Don't you see their witnesses do not know there
was any such case there?  And what was the fact?  There was a case
of Eldridge against Moore, at that term of the court, but not a case of
Moore against Eldridge.  There were two different suits against the same
parties relating to the same matter, and that celebrated instrument of
writing was in both cases. Now Mr. Kittrell said that case of Eldridge
against Moore was tried in that term of the court.  He was mistaken.
MIr. Ponder, the Clerk, and Mr. Lowe, Deputy Clerk, both tell you the
case in this court was Eldridge against Moore, and not Moore against
Eldridge, and there was no such case as the latter in court.  It had been
disposed of before, a court or two.  This was on a note, and was George
T. Moore and James Moore vs. John Eldridge.  There was never an attempt to take a bill in a case of Moore against Eldridge.  In this, they
tell you, I refused to sign a bill of exceptions unless certain facts were
proven. Now the testimony in the case is this: When they came to
make up the bill of exceptions, there was a difficulty about it with regard to what should go in the bill of exceptions. They say I said that
Mr. Iittrell testified about this instrument of writing, and they said he
did not. That issue may be between us. It was a difficulty, and Mr.
Kittrell was called in to decide it.  Mr. Kittrell says, as they did that,
I pressed the matter further. If that is the case the fact exists, and it
must go in the bill of exceptions.  Mr. Kittrell tells you that paper was
testimony before the jury. Mr. Kitchen tells you I put it in the bill of
exceptions. It will take but a moment to show about that paper. I am
obliged to remember all the cases I disposed of, instead of going to the
record. I can only quote from memory. Look at the records; if they
379 
IHIGHI COURT OF IMPEACHMENT.
are wrong, condemn me for them. But this outside matter,-what at torneys say, I cannot remember that. Now this was a note upon which
Eldridge sued Moore.  Moore had given a note to the firm, which he
thought had gone to the firm, but which had gone to Parker alone.  It
was necessary to say whether this note was given before the date of the
articles of agreement or not. If the note was given afterwards, it would
be like as if it was a matter they knew about, and had no connection
with the partnership business.  Then it was material to see what was
the date of this instrument of writing. It was produced, and the testi mony is that there was an erasure, which was a matter of inspection, to
say whether the instrument was dated the same day with the note.  One
of the dates would and one would not correspond. I told them to state
the fact, just merely to keep that instrument of writing to its proper of fice. The erasure could not be copied, and it would go up with a certain
date, and the Supreme Court could not see there was that blot. They
all admit the fact was in proof before the jury, whether Mr. Kittrell did
or did not testify to it. I am charged with inserting testimony which
was not proven, and then Mr. Kitchen tells you I put it in brackets to
show that it was not Mr. Kittrell that said it. Didn't I do just what I
ought to have done?
Then in the same article is the charge of this conversation I had about
the Moore case.  I contend. gentlemen, that a Judge is like any other
man. Hle takes an interest in the affairs of the community. lie is pre sumed to. In all matters he is like other persons. In becoming a Judge
he does not separate from society.  Suppose this murder that occurred
in St. Louis,-suppose the Judge of the Criminal Court expressed himself
thus: "That man ought to be hung," in the excitement of the moment;
would you say he was guilty?  In this Walker case, it was a public case.
I had a talk about it. I was giving may opinions about the instrument
of writing,-whether Moore should receive his pay from the firm.  They
had a good deal of talk, and I mentioned that it came to the ears of
Moore, and he did not think I had so expressed myself.  He permitted
the trial to go on, and did not apply for a change of venue. He said if
that is the case, I shall not gain it; it will be the same thing in court;
and he was perfectly willing for a trial under the circumstances.  It was
an incidental matter. It happened to be spoken of as I came out. I
was not going to pry into the matter, and ascertain, and give advice.
The sixteenth article is upon this case of the bill of Griffie. Now, Tyrell
tells you that in that case the trial was had, and the jury rendered a
verdict against the defendant for a larger amount than was claimed in
the petition, and I believe that was the fact.  That was the act of the
jury, but my conduct in the case is what they censure. Ile says when
they came to make up bills of exceptions, I would not sign until parts
of the motion papers were stricken out. He could not give his testimnony on parts that were material. I suppose he did not know the whole
matter was here, and it would be seen then whether it was lroper to do
so. Now, Bedford testifies Mr. Tyrell was not in the case until after the
trial was over. Air. Miller says Mr. Tyrell was not about until the trial
was over.  And the pleading in the case was all done by Wasson.  Miller says WVasson conducted the case.  Tyrell comes in and testifies about
this matter, and says I intimated to the jury (and brings it up as an instruction) that if the defendant had no interest in the land, he couldcl
not recover. In making up the bill of exceptions, I would not let that
go in, and a few words will explain that. In making motions for a new
trial they generally assign the reasons for a new trial. If there have
been instructions given, they number the instructions given. If a party
moves for a new trial, then there is the erroneous instructions. They
say the court erred in giving the second instruction, and it is numbered.
380 
JUDGE JACKSONIS ARGUMENT.
These instructions are all on a paper filed in the cause, and then when
they make a motion for a new trial, and they number the instructions
properly, and refer to it that way, and when it comes to the Supreme
Court that instruction, thus objected to, is considered, and then the instruction is examined into. Here was a dodge attempted to be practiced
by Air. Tyrell. I suppose he wanted to get the paper in there so it would
look as though the instruction had been given, in order to show the
court erred in giving the fifth or second instruction. When he came to
make up the bill of exceptions, I told him, "if you put that in there it
looks as if that instruction had been given, when it really was not.  When
you let it go up to the Supreme Court, if it comes up there you show it
was an instruction." But the observation I made he incorporates as an
instruction. And if I had signed the bill of exceptions that way, it
would have gone up to the Supreme Court as if that instruction had been
given. You may say, " because a Judge gave an erroneous instruction,"
and if you don't show that instruction has been given, the Supreme
Court will do nothing with it.  But if you put it in as an erroneous instruction, why, it looks as if it had actually been given. That, I told
him, he must strike out. And then, too, he says there was improper
evidence given, and comes and sets out what that evidence was. I don't
remember any such evidence having been given. The evidence that
was given in the case should be taken down. If such evidence wats given
in the case, the Supreme Court would act upon it, and he wanted to incorporate it in the motion for a new trial. If I had signed that bill of
exceptions, it would have been as much as to show this evidence was in.
It was for attempting to get in evidence that was not evidence, and I do
not blame lawyers for that. You know lawyers will do their best. If I
can get a thing in,-if a Judge permits it,-it shows I am pretty smart,
and can get a Judge to do things others cannot. I am sure I did nothing wrong in that. You will find that I can refer to it in a moment.
Now here is the motion for a new trial:
Defendant moves for a new trial in this case, because, first, on the trial plaintiff
totally failed to pr.ve any cause of action alleged in the petition.
Second, the jury were misled by testimony to prove who was the owner of the
land in question at the time of trial.
I did not know there was any such testimony as that, and would not
sign it.
Fourth, the jury were misled by the opinion of the court, that defendant had no
interest susceptible of conveyance in the land mentioned in the petition.
Now, that is what he wanted to put in. He says I had given that
opinion.  He brings it in here that it was an instruction. "The jury
were misled by the opinion of the court that the defendant had no
interest." If he had excepted to the opinion of the court, and was
giving instructions to cover that point, it would have been all right.
That would have been evidence. He was not there at the trial, and
knew nothing about it. He wanted to get up an embarrassment in the
case afterwards. This is the first motion. The other is about the testimony, and this is about the instruction.  If there is anything wrong in
that, is it not an error of the judgment, and not corruption or fraud in
office? I will read here a part of article sixteen:
ARTIC'LE XVI. That said Albert Jackson, at a Circuit Court begun and held
at the town of Bloomfield, within and for the county of Stoddard, on the third
Monday  in November, A. D. 1858, whereat said Albert Jackson preside(l as
Judge, was willfully and maliciously guilty of much gross oppression, partiality,
misconduct, and abuse of authority in his official capacity:
381 
HIGH COURT OF  IMPEACHMENT.
First. Inl expressing opinions and making assertions relative to the cause of
Gustavus Berry vs. John Griffie, then anid there pending, unbecoming his position as Judge.
Secoed, Inl expressing opinions and making assertions relative to the merits of
said cause in open court, in the presence and hearing of the jury empanneled
and sworn to try said cause, calculated to influence the minds of the jury
against the defendant.
Th-i-d. In corruptly endeavoring to prevent the defendant in said cause from
getting the same fairly before the Supreme Court on appeal, by refusing to sign
a bill of exceptions, properly tendered to him by counsel for said defendant,
until a large portion of the motion papers had been stricken out, so that a large
number of material reasons urged for a new trial in said cause did not appear in
said bill.
Fourth. Iln corruptly refusing to examine and sign the testimony preserved in
the bill of exceptions in said cause, although counsel for both parties agreed that
all of said testimony was correctly set forth therein, alleging as a reason that
there was so much noise in court during the trial of said cause  that he did not
know what testimony had been given; corruptly intending, by such refusal, to
prevent said defendant from getting said cause fairly before the Supreme Court.
Now, you have all the testimony of Bedford, and Tyrell himself said
that during the progress of that trial, Bedford was sitting in such a position with regard to myself, I could not hear, and I asked him to sit out
one or twice, so I could hear the responses. MIr. Tyrell attempts to insinuate that it was because I kept such bad order, and allowed so much
noise. That is not the case. Nobody complains I kept such bad order.
Nowi it was under these peculiar circumstances that Bedford tells you I
told him two or three times to sit out so I could hear him, and then,
when they want me to certify to the testimony, as an honest man I
could not do it and say what it was.  And for that I am arraigned!
iUnder that state of circumstances it was impossible for me to know the
case.  I would not certify to it.  They say because they took it,-because
both parties agreed to it,-I ought to have certified to it. If I certify
it must be from rmyv own knowledte.  They could have put that in.  It
didn't hinder them from taking it to the Supreme Court, and so both
parties heard the testimony. This is the substance of it. It was not
necessary to have me certify to it. They could have done so if they
chose.  No doubt the Supreme Court would have acted upon it.  It
was not my fault.  I did not hinder them from making a statement.
They could have done that if they chose. " In corruptly refusing to
sign a bill of exceptions in the case of Daugherty against Whitehead."
N7ow, wh-a.t they were I do not remember.  The case is not here.  I
really do not remember how it was.
Now then for the seventeenth article.  That is in regard to those
gaming cases. and my conduct in that matter. There was one indictment also pending against me for the same offense.  That I cannot say
about.  That is, you have heard the testimony and can say whether I
acted corruptly in that matter.  The jury were sworn and heard the
testimony on that matter, and saw whether it was sufficient to sustain
the indictment.,Ay opinion then was, and is yet, that it was not; and
cases of that kind are not indictable under our statute. It must be for
betting. If circumstances amount to a bet, if it is only a thlimble-full of
whisky, it is indictable.  If otherwise, it is not, and these are my opinions as a Judge; and that law came to me to be admninistered.  I gave
my opinion about it, and they undertake to say I influenced the jury.
Now, that prosecution came up because the difficulty had never been
decided, and I wanted to determine it. And Mfr. Tyrell says if that indictment had not contained my own name I would have quashed it.
But I did not think I had a right to quash my own indictment. I
would make no order whatever in my own case. I could not quash and
382 
JUDGE JACKSON S ARGUMENT.
could not enter a Polee prosequi in it.  Mr. Bartlett chose to have his
case tried, and when that point came up before me to decide from the
testimony there introduced, there was something mentioned on the
part of the attorney for defendant. The attorney probably believed
that they would like to hear the opinion of the court upon the testimony. I went on by argument to show the reason I came to that conclusion. If the jury took the case and found the defendant not guilty, I
did not want that done. After they found him not guilty. I could do no
more in the case.  The same difficulty would occur again in any other
court. I told them they could find a special verdict, and I would deliver
ramy opinion, and then the matter could be sent up to the Supreme Court,
and could be finally adjusted and settled. If the Supreme Court decided it was indictable, I should be forever bound by it. Now, that is
the whole matter. I was delivering my opinion as a Judge on the
bench.  If they had brought in a verdict of guilty I would have had to
set it aside. It would have laid over until the next term of the court.
It would have been tried again with the same results. There would
have been no end to it.  Now, the Circuit Attorney, seeing this was the
opinion of the court, entered a nole prosequi.  lIe wanted it to include
all cases in that indictment except against himself. I told him he could
not do it against or for myself. I could do nothing. And the one
against myselt stands there yet, unless the Circuit Attorney or Judges
of the Supreme Court has given an order sending it away. " Then permitting David G. Hicks to enter a nole prosequi." Now, this is intended
to show tha.t the Circuit Attorney entered a nole prosequi in my own
case.  Now, that was not done; it was in Bartlett's case and in Brand's,
but in HIicks's case, and my own, it was not done. No such thing. It
was intended to make it appear 1 had done it in my own case.  I did
not think I would have been doing so much wrong, but having no right
to meddle in my own case, I let the matter stand. In the other cases,
I gave my opinion. In my own I did nothing. They wanted to make
it appear that I dismissed my own case in dismissing Bartlett's. It was
their indictment,- several persons in the same indictment,-but it was
not a general indictment. The indictment was against either one or
against all of them. That is my view of it. I don't think any lawyer
would undertake to contradict it.
Now comes the celebrated Sarah Buckner case. If you can conceive,
gentlemen, in that what these persons are driving at, most certainly
you can do more than I can. If what they say is true,-for they say,
as MIr. Davis says, as 3Ir. Moore says, as Mr. Bedford says, as Mr. Phelan, and Bartlett, and others say,-I have acted exactly right in that
matter.  And why is it they impeach me for this  -ase?  I do not say
but M\r. Byrne's (?) view of the case is different from chat they say.
They say that Grimsley's testimony was withdrawn.  Mr. Bedford testifies about that, but the most he knows about it is what Mr. Davis said,
and what Mr. Davis understood,  which was that Grimsley's testimony
must have been withdrawn, and that it had been excluded. Mr. Davis
tells you that it was withdrawn, and that the bill of exceptions was
taken to it and it was excluded. Mr. Moore says the same thing, but
he does not remember whether the bill of exceptions was signed or not.
,3Ir. Phelan does not remember that, and swears that Grimslevy was not
cross-examined.  They wanted to except to it, but could not.  To use
his own language, they did their best, but did not have a chance to say a
word in the matter.
Mr. M~oore says I would not allow them to allude to Mr. Grimsley's
testimony. If the testimony was withdrawn and excepted to, was it not
my duty to prohibit them from commenting upon it? But then a great
fault they find is this: That when they canme to make out the bill of
383 
HIGH COURT OF IMPEACHMENT.
exceptions, I refused to sign the bill of exceptions unless Grimsley's testimony was incorporated. How could the Supreme Court decide whether
Grimsley's testimony was withdrawn or not?  If they say it was withdrawn, and excepted to, would not it have to go up to the Supreme
Court for it to decide whether it was Grimsley's testimony or not?  They
have fallen into a trap if they did so.  Now, gentlemen, I simply tell
you what I conceive to be the facts, and refer to Phelan's testimony, and
he will bear me out.  AIr. Phelan tells further, iGrimsley was not crossexamined.  They say he was cross-examined and for some time.  Now
it shows how hard it would be for you to decide upon a case against me,
upon testimony of this kind-matters which are not upon the record,or one recollects it one way and another a different way.  There is a
strange discrepancy.  S]r. Phelan cannot be right, because in the detail
of his testimony he goes on and says:
There were but two witnesses examined for the prosecution- in this case.  One
was defendant's son, and the other William C. Grimsley, ex-Sherift of Stoddard
county.  Mr. Grimsley went on to give in his testimony at considerable length.
He was under examination two or three hours.  Mr. Woodsides, the Circuit A.t torney, finally asked leave to withdraw the witness, which was granted, and the
trial went on.
Q. Did you object to the withdrawal of the w itress?
A. We made what objection we  couild.  I cannot say whether any exception
was entered of record.  We were not allowed to spe:.k of CGiins]ey's testimony,
and when Judge Jackson aninounced that the testimony of the witness was with drawn, we knew weil enough it was useless to imake    eton.  Ile is very  de cided.  When he has once made a decision, it is imrpossible to get him to review
it. You may talk of the laws of the Medes and l'ersaans, but they were not more
unalterable than Judge Jackson's decisions.  Ia. I)avis alluded to the state Inents of Grimsley not as testimony, but by wav of illustration.  lie was stopped
in his argument by the court.  I being the oldest atto)rney in the cause, tried to
conclude the argument for the defense; aid in my arginsoent before the jury, I
wished to allude to the statenments of Grimisley for the purpose of removing any
imipress;ionis they might have made on the in;nds of the jury.  The Judge stop ped me, also, and reiterated that the evidence of Grimsle   was withdrawn from
the jury.  I was not willing that the verdict of the jury should stand, and wished
to have a chance to take the case to the Supreme C(mit; but I had not time then
to prepare a bill of exceptions.  In this matter the J. il-ge treated me with more
than kindnless.  However, I am  aniticipati-g; I will come to that directly.  I
filed a nmotion for a new trial, aid Judge Jackson adijoirnedl the court to a day
one or two weeks subsequent.  I was compelled to leive the place, and while I
was gone, I was taken sick and was unable to attend on the d(lay to which Judge
Jackson had adjourned the court.  He cotntinued his kindness to me, however,
and adjourned the court a second time to a (lay perhaps three weeks subsequent
to the dayv of trial.  After I returned home, on the daa apponte(i I presented a
bill of exceptions.  In making out the bill of exceptions, I 1)elieve I put in the
motion for arrest of jii Itgmnent (I inserted it then, bet ause it was the first time I
th ught about it.) the point that the testimonv of one witness, uncorroborated,
was not sufficient to support a conviction for a capital oflense.  In discussing
this, the Judge persisted in saying that the testimony of Grimsl1ey was not withdrawn. When I at(lverted to thie fact that I wais not  perminitted to coniment upon
the testimony of Grimsley, and that we had not been allow ed th  benefit of a
cross-examination, the Judge took offense, and made somne threat.  Hle said that
he wvas going to do something.  I asked hims was it fLe?  Ie- said, "no, worse
than that."  I asked him was it go to jail?  Ie said, "no, worse than that,"
again.  " Then," I said, " I suppose you mean to strike me from the roll?"
Q. When did this occur?
A. I have not', perhaps, made nmyself understood. This was in my argument
of the cause before the jury.  I adverted to these facts and others, but the Judge
persisted in s,ayirig th t the testimony had not been withdrawnvi, and refused to
sigir the bill of exceptions until it was incorp)orated.
Q. Did yvou say that Grimsley was a witness on the part of the State?
A. Yes, sir. While he was on the stand under eixamination, the Judge observed, " Mr. Circuit Attorney, I would withdraw that witness."  lie made use
f some exprescfion tantamount to that, if it was not ths  very words.  The Cir
384 
JUDGE JACKSONS ARGUMENT.
cuit Attorney did not seem to take the hint given him, and the examination continued until the adjournment at noon. As soon as court convened after dinner,
the Circuit Attorney asked leave to withdraw the testimony of this witness.  The
Judge said "well," and the testimony was accordingly withdrawn.  When Mr.
Davis, my associate in the case spoke of it by way of illustration, and not as testimony, the conduct of the Judge wvas then harsh in the extreme, so much so
that Mir. Davis gave up the case, saying that if he could not act for the defendant
without the dictation of the court, he would abandon his cause.  As I said before, whenp I came to argue the case, I spoke of G-rirmsley's testimony to divest
the nilnds of the jurors of any inmpression that it was testimony.  The Judge
told me I moust not speak of it-that it was not testimony.  I endeavored to explain to him my purpose.  He seemed to get angry, and threatened mle. Then
it was that I asked would he fine? and he told me " worse than that;" was it
go to jail? and when he told me it was worse than that, I said, " I reckon you
intend to striike i-ie fron the roll." The poiIlt about the testimony of one witness,
uncorroborated, not being sufficient, never struck me until I came to prepare the
motion i'i arrest of judgment.  It is proper to observe that the prosecution rested
the case on the testisnony of the prisoner's son alone, after the testimony of
Grimsiey was withdrawn.  When I presented the bill of exceptions, as I before
stated, he retused to sign the bill until Grirnmsley's testimony was incorporated.
Q. Was 2Ir. Grimsley examined in the presence of the jury?
A. Yes, sir.  The examination lasted an hour or two; anld lhis testimony was
withcldrawxii from the consideration of the jury as I have stated.
iNow, why did they object to it if Grimsley's testimony was withdrawn?
and if they wanted to comment on that testimony, why did they wish
to have it withdrawn?  The facts are these: Mr. Phelan tells you that
he wanted to get that witness to state what Mrs. Buckner told him
that Susan told her.  That is the part he wanted  to get out.  That is
the part I thought ought to be excluded, and that is the part where the
difficulty arose.  If there was anything withdrawn-, it was because he
had got it out, and that part of the testimony was withdrawn.  "We
relied upon the cross-examination to bring out the facts of the admission of the daughter."   That leaves no doubt as to what they were contending for.  I decided in that matter that' the statements of hearsay
would not be testimony. If it was testimony for Mrs. Buckner to give
her own version, certainly it was not right for her to tell what other
folks said who were not there to testify in the matter. Thus it was
proper for me to prevent the attorneys from commenting on the case,
when the testimony was withdrawn.  When they wanted to comment
on it, didn't I do right to prevent them?  When  Mr. Davis went on,
and spoke, and insisted upon speaLking, and commenting upon Grimsley's testimony, I stopped him.   Ie says further he undertook merely
to illustrate by supposition. But his supposition was to suppose a case
like this testimony, and I would not permit him.  It was merely a dodge
to get in what he had no right to do.  And Mr. Davis tells you himself
that he tried two or three times. He heard me calling to him to tell him he
was out of order. Mr. Hicks said I had to speak two or three titmes, and he
turned around and said if he could not conduct the case he wokld give
it up.  lIe admits it was just done for effect.  Mr. Davis a({rtlits that
himself.  Now, if I committed wrong, what harm is there in all this
about that case? There was a woman on trial for having perpetrated
one of the most disgusting murders that was ever perpetrated.  So far
as I was concerned, I was willing to give her a fair trial. Phelan says I
took nmore interest in the case than he did, and trying to make out I
was trying to prosecute that wretched woman, when it was the fault of
her attorneys she was convicted. Now, Phelan tells you he never
thought to ask that instruction. I asked him in his testimony, "Phelan,
why didn't you ask for instructions from the court that the testimony
of one of the witnesses was not sufficient to convict?" and lie says he
did not think of it then. Is it possible that persons who pretend to
25
385 
HIIGH COURT OF IMPEACHMENT.
take upon themselves to defend a person from a charge of murder, in a
case of that kind, should be so negligent of their duties not to think of
that important matter?  And so angry was he that he could not get in
this matter about attempted rape, that he lost his case! And now he
wants me to be impeached for his bad conduct!?Now, gentlemen, that
matter,-the whole of it,-is before you.
The charges are of four or five different kinds, several contained in
each.  Hiere is another one here that is included in the sixteenth
article:
Sixth. In hearing and determining a motion to quash an indictment then and
there pending, against one David G. Hicks, who was then and there acting as
Circuit Attorney, pro tem., without having first appointed some other attorney
to represent the State in that behalf.
Here is the indictment against Hicks, and it is quashed.  Now, gentlemen, see if it was not proper to quash that indictment. The circumstances I do not recollect much about. The testimony was detailed by
young Miller.   He tells you he had a motion drawn up, and was going to
move to quash, and Mr. Hicks told him not to, and he did not file his
reasons. Afterwards though,-he says that was about the second day
of the term,-at the last day of the term, he asked the court to quash
that indictment; and when he did so he moved to quash that indictment, and it seemed there had been others of the same kind of assault
with intent to kill. It left out the words " with malice aforethought."
Mr. Hicks drew all these indictments up the same way as in drawing
an indictment for himself. I knew nothing about it. The grand jury
did not tell me they wanted another Circuit Attorney. It comes out
there is an indictment against Hicks drawn up by himself-there are
others in the same fix, and when Miller presents this, I asked the question if the same fact existed as in the others, and he told me yes; I
quashed it then, because I had quashed all the others for the same defect. What corruption is there in that? They undertake to say I did
it because I was friendly to David Hicks.  What evidence is there of it?
They undertake to introduce testimony about that. I am friendly to
David Hicks,-more so than I am to a good many others.  Is it a crime
for one person to be friendly to another person?  Who would be fit fobr a
Judge if he has no more partiality for an honest man and gentleman
than he has for a horsethief and scoundrel? Gentlemen, I ask any of
you if you do not feel a warmer feeling of friendship and more partiality towards an honest man and gentleman in every respect, than you
do for a dishonest man and a scoundrel? I do not thinkl a person ought
to be a Judge if he had just as much respect and just as much esteem for
a dishonest man as for an honest man. I do not think that man would
be fit for a Judge.  In regard to Mr. Hicks, I like the young man.  I
believe he is a general favorite. From what acquaintance I have had
with him for three or four years, I think him a promising young man,
and would do anything to assist him. But that I would,t dishonest
to befriend Mr. licks or any other man, is an insinuation which I repel
with scorn. They have tried to insinuate it that way, and to rake up
everything against me in my private relations. If they succeed in it,
it is for you to decide how far it is their province to act in this direction.
I want to allude to a few points in Phelan's testimony, to show the
state of his feelings, and see his statement, and his swearing to the
writing; and so, too, about Tyrell.  How they swear when it comes
against me! When they say I have acted harshly, and spoken harshly,
and "severe in the extreme," to use Phelan's term, and when you ask
them the question directly what was said, these very gentlemen cannot
give the words, but they are willing to swear to their conclusions that it
386 
JUDGE JACKSON'S ARGUMENT.
was "harsh in the extreme." To give the words-they can't do it. I
tried in every way, but they would not do it. And in speaking to Mr.
IPhelan
Q. Was I excited, and do you think my manner betrayed this excitement?
A. I have no earthly doubt of it, on that occasion more particularly.
Q. Which, Mr. Phelan, do you think it was: was I acting oppressively in the
matter, or was it that you thought you had a right to do so something, and that
I thought you had no right to do it, and you wanted your way, and I wanted
mine? Wasn't that what was the mnatter?
A. In that respect there might be a difference of opinion.
Q. Well, when there is a difference of opinion occurring in court, between
lawyers and the Judge, whose province is it to decide?
A. The Judge's, of course.
Q. Might not the Judge make a wrong decision honestly?  Couldn't he be honestly mistaken, and do you think such a mistake would be a fraud?
A. No, sir; there can be no question on the point whether an honest mistake
is a fraud.
Q. Didn't you get excited on that occasion, and talk a good deal, as you are
apt to do?
A. Annoyed is the utmost term I can use to express my feelings at the time.
There was a good deal of hard feeling excited by your course.
Before, he said he did get excited a little, and more particularly when
he says that in that case at Butler, when I announced to him he was in
colntqmpt of court, he was a little excited, and says, "I rather think not,
Judge!"  Kitchen says his expression's stronger-that it was a "lie"
and " false."
iIr. Fox, if you will notice his testimony about that, expresses it as
M3r. Kitchen did, but not in as strong language.  And see what Mr. Phelan here says about the excitement. Hie says the utmost he can ever
admit was hie was " annoyed."  How was he annoyed? When he wanted to be the " next friend."  It was annoying to think he could not be
Judge. It was very annoying.
M'r. Fox. as mildl as he is, andl speaking so little and pleasantly, as he
was going on, was thought by Senators to be out of order.
Q. WVell, Mr. Phelan, you informed us that you were an attorney.  Where do
you practice?
A. In the Fifteenth Circuit.  I cannot say that I am enrolled in all the courts
in that circuit.  I have never taken the trouble to attend to the matter.  In fact
I cannot say that I ever thought about it.
Q  Is your name enrolled as an attorney in any county?
He thinks he is an attorney, but don't know whether he is an attorney or not, and has not taken pains to have his name enrolled, though
the law says if he does not do it, he is in contempt.  Ile thinks it a very
simple matter, and wants to claim the rights and privileges of anattorney, though the law requires it positively, and says he is contempt of
court if he don't do it. It is for you to say how far such testimony will
go to establish facts. The first charge is issuing an attachment which I
ought not to have done.  Gentlemen, a similar thing was done herehere you had a right to issue attachments, though there were persons
here offering excuses at the time, saying the persons would be here.
They did not come in obedience to the writ, neither had any return
been made in obedience to the writ. I had issued a writ, and all I could
do was to issue an attachment, and see what was the matter. Was there
anything oppressive in that?  And even if it was so, whose fault was it?
Not the fault of the Judge, but the fault of the law allowing such
things. Then the one of talking out of the court to Walker, Odell, and
Ringer, and in that case of Moore.  Now, what would that amount to,
38T 
HIIGH COURT OF IMPEACHMENT.
gentlemen?  Do you think I ought to be turned out and thought not
worthy of holding office in the State again?  Was there any evil intention, and if there was an evil intention was there anything evil in the
act or in the intention either?  And then as to this insulting expressions and manner towards attorneys.  Now, gentlemen, in every case
where it has been done, it was where I conceived the attorneys needed
it,-as they did.  Your Speaker here has a gavel or hammer, and can
rap.  The Judge has to sing out at the top of his voice, as in the case of
Fox, when I had to call out three times before he heard me.  Perhaps
a rap on a sounding-board would have caused him to hear me the first
time. Suppose a Judge calls a crowd to order when they are not out of
order?  It would be ridiculous.  He must decide as he thinks-according to the best of his ability.  So in this case, when these lawyers were
out of order, I endeavored to put them in a way of discharging their
duties.  They say I did it with harsh, abusive, and insulting language.
But when you come to ask them about these insulting expressions, they
cannot tell what they were.  They only say it was harsh, and abusive.
With regard to signing the bills of exceptions. I think in these cases I
did not do wrong. I can admit I was mistaken. I can admit I should
have signed them.  What were the facts?  Are they really as they say?
Do they show I did anything corruptly?  Am I to have no allowance
for errors or mistakes, in the discharge of my duty?  Am I to be held
strictly answerable for every error I commit-that it is no mistake or
error, but crime? I think you will take it fairly into consideration, and
give me the advantage of that. If it is error, or if it is mistake ori ir regularity, with no bad intention about it, why of course it was not
impeachable. Here is another class of accusations which I do not con ceive it is your duty to pass upon, and that is whether I have made right
or wrong decisions.  Now, I think if a Judge decides wrong in a case,
if he is mistaken, exceptions must be taken, and the case must be car ried to the Supreme Court and there rectified.  If it is acquiesced in, it
stands that the Judge was right in his decision. But if he makes a
mistake, the law provides it must go to the Supreme Court.  And I do
not think that this Court has a right to investigate these matters and
say whether my decisions were right or wrong. If there was corruption
attending them, you may examine them, but I still hold, as before, it
mnust be upon conviction for an indictable offense, before you can con vict. A Judge is as liable to be indicted as any other person, though
for a matter not connected with his office.  If convicted he can be
turned out, because Judges cannot hold office if they commit offenses
and violate the law. Now, all I ask is that you examine the testimony
and give it an impartial hearing, and I shall be bound to be satisfied
about it.
The argument of Judge Jackson having been concluded, on motion
of SENATOR RAINS, the Court adjourned to 2 o'clock, P..
388 
MR. KNOTTIS ARGUMENT.
EVENING SESSION.
TUESDAY, June 21, 1859.
The Court met pursuant to adjournment.
The managers and respondent attended.
[Reported by George C. Stedman.]
ARGU31ENT OF MR. KNOTT.
Mr. KNOTT, having announced himself ready to proceed with his concluding argument, rose and said:
MAY IT PLEASE THE COURT-MR. PRESIDENT:  I regard the cause now
about to be submitted to your final adjudication, as one of the most
stupendous that can be submitted to a human tribunal. The interests
involved, and the consequences to be anticipated from trials of the
nature of the present one, are of a magnitude that cannot pertain to
any other. The State upon one hand, pointing to her violated laws and
polluted Judiciary, appeals to her highest tribunal, demanding that the
great and plenary power with which it is endowed may be exerted to
drag corruption from the high places in which it has perched, and save
her institutions from the foul contamination of its baleful presence;
while upon the other, a distinguished recipient of popular favor, protesting his innocence, implores the Court not to pronounce against him
a judgment that will not only remove him from his place, but forever
stigmatize him as being unworthy of public confidence and unfit to be
entrusted with any office of honor, trust, or profit. I am aware, too,
that every member of this honorable Court has, in the presence of his
country, and in the most solemn manner, called upon his God to witness his determination to try this cause according to law and justice;
and while this solemn obligation rests upon you, I feel there is one of
no less solemnity devolving upon myself.
The House of Representatives, with a unanimity before unknown to
the annals of this or any other State,-a unanimity clearly evincing the
deep and earnest interest excited in them by the alarming spectacle of
corruption and wrong exhibited in the official conduct of this respondent,-preferred this accusation and sent me here to make good the same
before this bar; and to them I am sensible I owe the strictest accountability for the manner in which I discharge the grave and important
duties they have entrusted to me. I know, too, that although my voice
may be circumscribed by these walls, the inspection of my participation
in this trial will not be limited to this occasion or confined to this capitol.  The dark picture of judclicial crime upon which I shall ask this
Court to look, will be contemplated in every avenue of life. in every
neighborhood throughout the State.  The farmer in his rural retirement,
the artisan in his workshop, the lawyer at his desk, and the merchant
in his counting-house, each having an interest in the issue of this trial,
will examine and pass upon the action of evcry one connected with it.
And, sir, long after you and I shall have left the busy arena of life, should
official corruption rear again its horrid head in our beloved State, legislators and statesmen, recurring to this case as a precedent, will scrutinize
our actions and criticise the manner in which we discharge our several
duties. with judgments unbiassedl by any consideration that may influence the opinions of those contemporary with these proceedings.
389 
HIGH COURT OF IMPEACHMENT.
I need not therefore assure this Court that, while I invite their attention to an application of the facts developed by the testimony to the
law that must govern in the adjudication of this cause, I shall " nothing
extenuate, nor aught set down in malice." I will endeavor to confine
myself strictly to the law as I find it in the books, and the facts detailed
by the witnesses who have been sworn upon this stand; and in the deductions I shall seek to draw therefrom, I will not intentionally deviate
from the rigid requirements of truth and justice "even in the estimation of a hair." I will not give myself the latitude the respondent has
seen proper to assume. I will not give wings to my imagination and
soar beyond the confines of the evidence, to decoy your minds from a
calm and close investigation of the facts disclosed, and a proper application of the law, as the respondent has deemed it wisest to do. There
is no necessity for any such excursions of fancy on my part; the case
itself affords a field far too extensive for my physical strength or inteltectual powers to explore, without seeking to venture beyond its boundaries.  I will not suppose a state of facts that has no existence, as he
has done, and ask the Court to regard the case supposed as being proved;
for, sir, rather than seek thus unjustly to prejudice the safety of a single
hair of his head, my tongue should rot, nerveless and palsied, within my
speechless lips.  Nor shall I in any particular undertake to emulate the
manner in which the respondent has conducted his defense throughout.
He has exhausted the whole range of histrionic art, from the lowest
comedy to the heaviest tragedy; but, sir, I possess no such dramatic
versatility. I cannot one moment assume the supercilious haughtiness
of a dictatorial despot, and sneer upon all around me with an air of
supreme contempt, and the next melt into tears under the overwhelming power of my own pathos.  Nor are my powers of sarcasm so brilliant as those fromn time to time exhibited by the respondent.   I promise
no polish in my discourse, except what may be imparted to it by an
honest conviction that I am in the discharge of a high and sacred duty.
It will be remembered that in the commnencement of these proceedings, and indeed frequently during the preliminaries to this trial, the
respondent not only poured upon the House of tRepresentatives all the
vials of his wrath, because they, in the proper discharge of what they
conceived to be an indispensable duty they owed to the State, preferred
these accusations against him; but treated the accusations themselves,
as well as those who were delegated to present them here, with the
most supreme contempt. Such, sir, was the arrogance of his manner
that I was frequently almost constrained to exclaim as Cassius does of
Cesar:
" Why, man, he dost bestride the narrow world
Like a Colossus; and we petty men mIust
Walk under his huge legs, and peep about
To find ourselves dishonorable graves."
In the opening of this trial even the Senate was scarcely up to the
dignity of his contempt.  When honorable gentlemen sought to interchange opinions upon the best method of proceeding, he haughtily denouncecld this Court as the most disorderly jury he had ever seen. When
he came to state his defense, he not only advertised himself as the idol
of the Fifteenth Judicial Circuit before whom that entire community
deemed it an honor to bend the knee in the humblest reverence, but
informed the Court that he was going to show that the charges brought
against him were not only trivial, contemptible, and insufficient in law,
but unfounded in fact; that hlie was the object of a blind, fanatical
persecution,-sought to be made the victim of a horrible conspiracy, concocted by his deadly foes to evict him of his office, and blast his reputa
390 
MR. KNOTT'$ ARGUMENT.
tion, for no crime, no shadow of wrong upon his part, but that he would
cause the fiendish machinations of these remorseless enemies to recoil
upon them with such accumulated force that they would only be saved
from annihilation to become the "hiss and by-word" of all good men,
the synonym of all that is low, mean, and demoniac. I do not pretend
that such was the language used by the respondent at any time, but
that such was the idea he intended to convey. Yet, when the State sup ports her cause by an array of testimony rendering it as clear and palpable as yon sun in his meridian splendor,-so irrefragable that even he
had not the effrontery to deny that the case was made out; when he is
confronted here by an array of gentlemen as respectable as any in the
State, I care not where they may be sought,-gentlemen whose reputation he dared not assail,-gentlemen who detailed their testimony with a
calmness and candor that carried with it an irresistible conviction of its
truth,-all this boasted defense, this horrid conspiracy, this planned system of persecution, upon the altar of which he claimed to be an unoffending sacrifice, "vanishes into thin air," and he seeks to escape your
just condemntation, and the punishment due to his crimes, because a
number of gentlemen did not know that he wNas habitually guilty of
offenses, a single one of which would be sufficient, not only to hurl him
in disgrace from his high position, but ought to fix upon him  the scorn
and detestation of every good man in the State.  I need not remind
this Court, that all the respondent seemed to try to establish by his
great retinue of witnesses was, that ttey were ignorant of the truth of
the charges alleged against him; for even that defense, discreditable to
his character as a jurist, and insulting to the common sense of this
Court, has been abandoned by him in disgust; and finally exchanging
the supercillious airs of arrogance and sarcasm, with which he has given
variety to the manner of conducting his defense, for the piteous tones of
the profoundest humility, he presents the revolting spectacle of a man
high in office, and hitherto high in public confidence, pleading his mental
imbecility, ignorance, and incapacity, in extenuation of a long and
damning catalogue of crimes alleged against him. Having failed to establish a single circumstance he promised in his defense, he stultifies himself by saying, that notwithstanding we may have proven every charge
against him, it was only a mistake in judgment, an error of the head, not
resulting from any corrupt intention; and triumphantly calls upon the
prosecution to explore the recesses of his hidden heart, and drag forth
the evidences of corruption lurking there,-to anatomize his secret soul,
and point out the very chamber where lurked the evil motive for each
disgraceful act of official violence we have fixed upon him.  Very well,
I shall do so when I come to analyze the evidence and apply it to each
particular charge; but I must defer the dissection until I shall have examinied some of the astounding positions the respondent has assumed
in relation to the provisions of the constitution and the law involved
in this cause.  But, sir, I do not advert to the doctrines advanced by the
respondent because I believe they have made an impression, or can excite any feeling but pity, or ridicule. I do so for the purpose of showing the people of Missouri what kind of material a Circuit Judge may
be made of, —what amount of intellect and legal acumen is possessed
by some who hold in the hollow of their hands the most important interests of the State, and the dearest rights of the citizen; and I have
no doubt they will say the respondent has at least succeeded in establishing his plea of ignorance, if he has failed to show his innocence.
In the first place, sir, this learned Judge states, without any qualification, that the House of Representatives in presenting these articles,
and the Senate in sitting here to try them, are each guilty of a violation
of the constitution, because the second article of the constitution pro
391 
HIGII COURT OF IMPEACHMENT.
vides that " the powers of government shall be divided into three distinct departments, each of which shall be confined to a separate magistracy; and that no person charged with powers belonging to one of
these departments, shall exercise any of the powers properly belonging
to either of the other departments."   Ie contends that the Judiciary
is independent of the Legislature, and that whatever may have been
his crimes, whatever may have been his official misconduct, the Hlouse
of Representatives had no right under the constitution to prefer these
articles; and that you, sir, in setting here to pass upon them, violate
your obligation to support the constitution, because such action would
be an infringement of the rights and privileges of the Judiciary, whose
sole province he claims it to be, to make inquiry into, and properly
punish such conduct. I will venture to say, sir, there is not another
man in Missouri, learned or unlearned, who would hazard the expression of such an opinion. Explain to the most illiterate man in the limits
of the entire State the fact, that the powers of government are distributed among three separate and distinct departments, and that neither
is absolute, but all are accountable for the proper and lawful discharge
of their respective duties, and ask him whether it would be proper to
permit each one of these magistracies to be the judge of its own official
demeanor, and he will unhesitatingly tell you, no! that if you make
each department the tribunal to determine upon the propriety of its
own conduct, you would soon have no restriction upon  the abuse of
power save the conscientious compunctions of the official, with no
criterion of rectitude save his own inclination. No proposition can be
more self-evident than that as the Judge is made an officer by the peo —
ple, and for their beniefit, he should be made answerable to them for
the fidelity of his deportment in office; and if made responsible to them
they have a right to accuse him  through their immediate  representatives, and to have him tried before a tribunal of a character not likely
to be swayed by the might of popular feeling, or the influence usually
pertaining to elevated positions, either political or social.  But, sir, the
provisions of the constitution are too plain to justify an argument. To
state the position the respondent assumes is all that is necessary to show
its absurdity; and besides, sir, the respondent himself, strange, inconsistent and contradictory as it is, presently assumes the equally ridiculous position that there are "te.vo k[iJd8 of imnpctclten.t!"  In the one
kind the House of Representatives mayv, for certain things which  Ie is
pleased to call misdemeanors, of which I shall speak presently, prefer
articles of impeachment, the accused may be confronted by his witnesses and have a fair trial; that in the other class he must be first indicted, tried by a jury, and convictecl bv a jury, and the Senate upon
the record of that conviction, and that alone, may impeach and evict
him of his office; and the only authority hlie cites for this remarlkable
position is the fourteenth section of the third article of the constitution: 
The General Assembly shall have po-wer to exclulde fiom every officee of honor,.
trust, or profit, within this State, and from the right of suffrage, all persons convicted of bribery, perjury, or other infamous crime.
Now, sir, let us see whether this doctrine is sustained by this law, or
any principle of reason.  W1hat, then, does this clause in the constitution
mean?  It simply means that the right of suffiage, and the right to
hold any office of honor, profit, or trust in the Commonwealth, are
franchises inherent in every citizen, and that to deprive him of either
of those rights requires an exertion of sovereign power; that sovereignty
could not in the narrow limits of the constitution specify every offense
for which the citizen should be disfranchised(, nor provide the means by
892 
-~~~~~R KNT'  wiUET 
which it should be done; and that the Legislature is the agency selected
by the sovereign power for the accomplishment of these objects. It
merely means to confer upon the General Assembly the power to pass
a law declaring that all persons convicted of bribery, perjury, and other
infamous crimtnes, should be disqualified from holding any office within
the State, and deprived of the right of suffrage; and wherever the
Legislature has included disfranchisement in the penalty affixed to any
crime, it is one of the inseparable incidents to a conviction for that
crime.  Turn to page 608 of the Revised Statutes of Missouri, 1855, and
you will find the Legislature, acting upon this view of this provision of
the constitution, has enacted that
Every person who shall be convicted of any perjury, or subornation of perjury, punishable by any of the provisions of this article, shall thereafter be incompetent to serve as a juror, testify as a witness in any case, civil or criminal,
and shall be disqualified from voting at any election, or holding any office of
honor, trust, or profit, within this State.
And besides, I expect to show that under the denomination "other
infamozt,s crimes," the Legislature has included the very offenses of which
the respondent here stands impeached; and has affixed to them the
penalty of perpetual disfranchisement. But, sir, let us make a practical application of the doctrine of the respondent. The House of Representatives presents to this honorable Court articles of impeachment,
charging some Judge with the commission of an infamous crime. The
accused is brought before this bar,-granting such a thing possible after
he has been tried by a jury, convicted and sentenced. The managers
appear, and everything being ready for trial, they present the record of
the conviction of the accused by the jury, and tell you that is all the
evidence you are to examine as to the guilt of the party. You protest
that you are under the obligations of a solemn oath to try the cause
according to law and justice, and you cannot consent to give your consciences into the keeping of twelve other men. Perhaps they may have
been bribed; perhaps the witnesses upon whose testimony the verdict
was founded may have been hired to swear falsely.  You would prefer
to see the witnesses face to face,-to see how they deport themselves,or you would at least like to know upon what grounds the jury predicated an opinion you must be forced to adopt as your own.  But no,
you have nothing to examine but the record of conviction. And what
next?  Convict him?  He has already been convicted.  Disfranchise
him?  His disfranchisement is an inseparable incident to his conrviction.
That was accomplished when the jury pronounced him guilty, and the
court passed the sentence of the law upon him. This grave and dignified
body, then, has been sitting here to enact one of the silliest, flattest farces
imaginable,-to do a thing that has already been fully accomplished!
I appeal to this honorable Court, if in all their experience they have
ever known a position so palpably absurd, so utterly devoid of te slightest trace of common sense, to be assumed before? He protests against
this Court trying his cause.  He invokes the constitution, and demands
a trial by his peers, by a jury of his country.  Ah  sir, he has a high
appreciation of the trial by jury no,,v; but when a victim of his persecution goes before a grand jury of his country, and tells them'the Judge
of the Circuit Court has singled me out as the object of his vindictive
malice, he has violated my liberty, he has outraged my rights, he has
willfully, corruptly, and brutally oppressed me, I demand at your hands
the protection guarantied by the laws of my country,' he goes privately
before that grand jury in their retirement, and instructs them they cannot indict hitl for anything of which he may be guilty in his office!
You have not forgotten, sir, that the respondent in opening his case the
893
MR. KNOTT )S ARGUMENT. 
HIIGII COURT OF IMPEACHMENT.
other day, when he came to speak of the seventeenth article, said expressly, " I did tell the grand jury they could not indict me; I told
them, too, I would fine them for contempt of court if they persisted in
it;" and in the very next breath he claims the privilegeof being indicted
by a grand jury; and even goes so far as to say that the constitution
precludes a trial without it.
Again, sir, he tells you, notwithstanding every fact charged has been
incontrovertibly established, they only amount to errors of judgment,
for which the proper remedy would be by appeal to the Supreme Court.
Yet one of the gravest charges alleged against him is for having on repeated occasions falsified the records of his courts, refused to sign bills
of exceptions, and prevented in various ways the taking of cases fairly,
fully, and properly before the Supreme Court. Ite tramples our laws
under his feet, violates every principle of human right and justice,
effectually thwarts the citizen's right to an appeal to the Supreme Court,
claims to be independent of the Legislature, and supreme in his own
courts. A pillar and support of the law, he claims a chartered privilege
of iimmolating upon the altar of his vengeance the rights and interests
of all who may incur his hate. If consistency is a jewel, what a wonderfully rich lapidary he must be!!
And now, sir, pray what are the offenses for which the respondent
admits he meay be impeached? What are the things and the only
things for which he says the constitution authorizes the House of Representatives to prefer charges against him, or justifies the Senate to set
as a Court of Impeachment?  f?irst, The crime of being over sixty-five
years of age! Second, That of being under thirty!  T/hird, Residing
out of the circuit over which hlie claims to preside! He avers that these
three cases embrace all the causes for which he can be impeached; but
I appeal to the distinguished lawyers I recognize in this Court to tell
me if hle can be impeached at all for any of these things. Besides, sir,
out of his own mouth I will refute him. In his answer, the respondent
lays it down as the very corner-stone of his defense, that " by the constitution of Missouri, a Judge can only be impeached for misdemeanors
in office, and those misdemeanors must first be declared, and the penalty
affixed therefor, by an act of the Legislature." I quote his very language.  Now, sir, where has the Legislature declared either of these
things misdemeanors in office? and what is the penalty affixed thereto?
Sir, the Legislature could never be guilty of such a puerile absurdity.
I grant, sir, that no man has a right to exercise the functions of Judge
of the Circuit Court if he is under thirty years of age, or over sixty-five,
or if he reside out of the circuit over which he claims to preside; but,
sir, under our statute, requiring that every Judge within thirty days
after his election shall file with the Secretary of State a statement of
his age under oath, and since the people of any circuit would hardly
elect a man as a Judge who resides somewhere else, such a thing can
scarcely happen; but if it should happen, it would net be a misdemeanor in office. On the contrary, the official conduct of the party
thus unlawfully in possession of the office, might not deviate a single
hair's breadth from the line of perfect rectitude. Sir, I will insult no
member of this Court by insinuating that it is possible for him to endorse this silly doctrine of the respondent, for I know it is a fact with
which you are every one familiar, that there is another method, in no
particular resembling this proceeding, by which a man must be turned
out of an office into which he has obtruded himself while under legal
disability. PBut in order to demonstrate fully and effectually the extremine absurdity of his position, I ask to apply his doctrine to the present case. Suppose this impeachment is sustained, and the respondent
disqualified from holding any office of honor trust or profit in this
394 
MR. KNOTT'S ARGUMENT.
State. So far as the Judgeship is concerned he is in the same predicament he would be if over sixty-five years of age. Now suppose, notwithstanding this fact, he should be again elected Judge of the Fifteenth
Judicial Circuit, and by some means obtain a commission to discharge
the duties pertaining to that office, According to the respondent's position, he should be impeached.  What for?  Why for obtruding himself
into an office he had no right to hold under the law.  Why has he no
right to hold it? Because he had been impeached and disfranchised.
Well, what penalty do you or can you expect to inflict in this second
impeachment? You can't disfranchise him; that has already been
done.  You had as well talk of killing a man after he is dead!
I have bestowed thus much attention upon the positions assumed, and
the general principles laid down by the respondent, merely to show, Mr.
President, what amount of legal knowledge, what degree of ordinary
reason it is thought necessary by some to qualify a man for one of the
most important positions in the government,-an elevated place in the
judiciary of the country. And I must be permitted to say, sir, that I
am confident the people of the Fifteenth Judicial Circuit, whom the
respondent has so frequently represented, with perhaps as much
modesty as truth, as holding him in such profound veneration, will consider themselves happily rid of such a Judge when they have seen how
illy capacitated he is to preside over their most vital interests; for I am
happy to have the occasion to say that, from my intercourse with those
of them whom I have had the pleasure to meet as witnesses here, the
State cannot produce a more intelligent community, nor one more worthy of her protection.
But. sir, let us inquire for what causes a Judge mnay be impeached.
The constitution, twenty-ninth section, third article, provides that " the
Governor, Lieutenant-Governor, Secretary of State, Auditor, Treasurer,
Attorney-General, and all Judges of the courts of law and equity, shall
be liable to impeachment for any misdemeanor in office."  Hlence the inquiry becomes pertinent, what will constitute a misdemeanor in office,
within the meaning of this provision of the constitution?  The respondent has repeatedly claimed, that to constitute an offense impeachable, it
must be declared so by the constitution; but I entertain a different
opinion. I think if the framers of the constitution had undertaken to
define all the offenses for which an officer should be impeached in that
instrument, it would have been more voluminous than this statute book,
and hence they used one general term applicable to every variety of misbehavior calculated to lessen the adaptation of the office to the purposes
for which it was designed, whether that misbehavior amount to a crime
or even an indictable offense or not.  Like many other words, the term
misdemeanor has a general and a technical meaning. Technically, it is
defined by MAr. Blackstone, in the fourth book of his Commentaries,
page five, to be a gentler name than crime for the smaller faults and
omissions in violation of law. I will read what he says: " A crime or
misdemeanor is an act committed or omitted in violation of a public
law, either forbidding or commanding it. This general definition comprehends both crimes and misdemeanors, which are synonymous terms,
though in common usage the word'crimes' is used to denote such offenses as are of a deeper and more atrocious dye; while smaller faults
and omissions of less consequence, are comprised under the gentler name
of misdemeanor only." In its ordinary, general sense, the term misdemneanor is defined by our best lexicographers to mean, " ill-behavior,"
" evil conduct," " fault," "mismanagement," and includes every species
of misbehavior of which a man can be guilty, that can tend to bring disgrace upon himself, and diminish the respect due to his position, from
murder and treason, down to the numerous vices that so frequently mar
395
I 
HIGH COURT OF IMPEACHMENT.
the purity of the social circle. It is in this sense I think it is used in
the constitution. I think it was the intention of the framers of that instrument to provide that any person entrusted with any of the distinguished positions enumerated in the twenty-ninth section of the third
article of the constitution, who should, during his continuance therein
be guilty of any conduct calculated to disgrace that high office, should
be impeached and disfranchised, whether that conduct were indictable
or not.
In support of this view, my learned colleague, Mr. Hardin, on yesterday, read to you the opinions of Mr. Story and others, who express themselves clearly and unequivocally in favor of it. Besides, he demonstrated
to you that the Congress of the United States has unhesitatingly acted
upon the conclusion, that the offense for which an officer may be inmpeached need not be such as would subject him to indictment. And
here is another American authority upon the same subject, in addition
to those cited by my colleague:
The causes for impeachment, as stated in the Federal constitution, are treason,
bribery, and other high crimes and misdemeanors, and in most of the State constitutions, misdemeanors in office. The meaning of both is probably the same.
A violation of official duty, whether criminal or not, is a subject of impeachment.-Walker's Introduction, page 90.
But, sir, if the other view of the subject be preferred,-if it be thought
that the term misdemeanors in office is used in the constitution in a
circumnscribed, technical sense, and that the word misdemeanors is there
used to denote indictable offenses, of what may such offenses consist?
Our statute provides that the common law of England, when the same
does not conflict with the constitution of the United States or of this
State, or any statute in force, shall be tihe rule of action and decision in
this State. Permit me to read, then, some common law authorities by
which such offenses are defined:
The opo)recssion and tyrannical partiality of Judges, Justices, and other magistrates, in the administration and under color of their offices, may be punished by
impeachment in Parliament, or by information or intdictm)cent, accoridinlg to the
rank of the offenders, and the circumstances of the case.-1 Russell on Crimes,
page 136.
From this authority we see that oppiression and partiality, by a Judge,
is not only indictable, but impeachable.
But I will read another author upon the same point:
There is yet another offense against public justice which is a misdemeanor of
deep malignity; and so much the deeper, as there are nmany opportunities of
putting it in practice, and the power and wealth of the offenders may often deter
the injured from a legal prosecution. This is the oppressiont and tyranotical partiality of Jud'ges, Justices, and other magistrates, in the administration and under
color of their office.  However, when prosecuted either by inmpeamneit in Parliameut, or by information in the court of Queen's Bench, according to the rank
of the offenders, it is sure to be severely punished with forfeiture of their offices,
(either consequential or immediate,) fines, etc.-4 Stephen's Commentaries,
page 272.
Judge Bouvier, in his excellent Law Dictionary, defines a misdemeanor
to be "a term used to express any offense inferior to a felony, punishable by indictment or particular prescribed mode."  We find from the
authorities I have read, that any act of oppression, partiality, abuse of
authority, or official misconduct on the part-of a Judge, is indictable;
and hence a misdemeanor in office, an offense answering exactly to the
terms of the constitution subjecting him to impeachment.
396 
MR. KNOTT' S ARGUMENT.
I am willing, however, sir, for the accommodation of the respondent,
to come even to the terms he has prescribed himself, that to render an
offense impeachable, it must be defined, and a penalty affixed by statute;
for as I have before assured you, this case is abundantly provided for.
The Legislature of our State. well knowing the natural proneness of
some classes of men when "clothed with a little brief authority," to
domineer over their fellows, and override their rights and liberties; and
knowing, too, that just such characters would claim to be independent
of all law not laid down withini the lids of the statutes, with a sagacity
and foresight worthy of American statesmen, has enacted that
Every person holding or exercising any office or public trust, who shall be
guilty of willful and malicious oppression, partiality, misconduct, or abuse of
authority in his official capacity, or under color of his office, shall, on conviction,
be punished by imprisonment in the county jail for a term not exceeding one
year, and fine not exceeding one thousand dollars.-:1 Revised Statutes Missouri, page 613.
Now, here is any kind of willful and malicious misconduct on the part
of a Judge made indictable, and the penalty affixed by express statutory
enactment; and hence, according to the most rigid requirements of the
rule laid down by the respondent in his answer, sufficient to subject
him to impeachment.
The respondent, sir, knows and feels that he cannot escape the force
of this statute, and so completely overwhelming was this conviction upon
him when he came to advert to it in his argument, he had no way to
evade it but by totally denying that it had any application whatever to
a Judge. To prove that it does not apply to a Judge, he had recourse
to an argument that would have wreathed tbe countenance of every
member of this Court with a smile of ridicule, had not pity for his miserable confusion repressed it. Says he, this cannot apply to me, for a
Judge cannot be guilty of oppression; he may be guilty of an act the
con.sequences of which may be oppressive, but the act itself cannot be so!
What a wonderfully nice distinction this is, indeed! Why, sir, he rivals
the celebrated Hudibras:
He can distinguish and divide
A hair'twixt south and southwest side!
I suppose, sir, in carrying this newly discovered and truly wonderful
principle into practice, he would say, if I were to raise my gun and fire
it in the direction of your body, whereby you are slain, I would be
guiltless of your murder, because it would not be the act of firing, but
the co?,sequences of it that deprived you of life!  HIe forgot to say in the
same connection that a Judge could not be guilty of partiality! That
was too much for even his effrontery.  But, sir, I will not insult the
common sense of this Senate by further noticing a quibble so pitiful
that the most contemptible pettifogger that ever exercised his professional chicanery in a Justice's court, would feel himself disgraced to resort to it; for it is a proposition upon which no one here will require an
argument, that of all others the office of Judge of the Circuit Court
may be and frequently is exercised most injuriously to the rights and
liberties of the people; that of all others it may be most easily perverted to the vilest oppression, is most liable to be polluted by partiality, and subject to the greatest abuse; and that every person exercising
its functions should be held to the strictest accountability for all his
acts of willful official misconduct.
Again, sir, I hold that a Judge is impeachable, not only for what he
may do in contravention of law and the duties of his office, but for
neglecting or refusing to do what is enjoined on him by law. You will
397 
HFIG   COURT OF IMPEACHAIENT.
remember that in Mr. Blackstone's definition of the terms "crimes'"
and "misdemeanors," I just now read to the Court, he includes omissions as well as cornmiissios.  But, sir, I will read another authority upon
this point:
WVhere an officer neglects a duty incumbent upon him either by common law
or by statute, he is indictable for his offense.-1 Rus. on Cr. p. 135.
Again, on page 13S of the same volume, the same subject is more elaborately discussed:
It has already been stated that an officer eiylelctiiy the duties of his office is
guilty of an indictable offense.
But I am not forced to rely upon the common law authorities, of which
an abundance might be produced to sustain this position.  Turn to the
twenty-first section of the sixth article of the act respecting crimes and
punishments:
Every officer or person holding any trust or appointment who shall be conlvicted of any willful misconduct or misdemeanor in office, or neqlect to perform
any duty enjoined on him by law, when no special provision is made for the
punishment of such misdemeanor, misconduct, or negligence, shall be punished
by fine not exceeding five hundred dollars, or by imiprisonment in the county jail
not exceeding one y ear, or by both such fine and imprisonment.
IHere, sir, a willful neglect to perform any duty enjoined by law is a
misdemeanor; and statutable misdemeanors being, according to the respondent's own demand, impeachable under the constitution, the conclusion is unavoidable, that a Judge may be impeached for willful neglect of duty.
But, sir, how has the Legislature classified such offenses as oppression
in office, partiality, abuse of authority, and other official misconduct?
It has not only declared them indictable, and affixe(l a punishment to
them, but justly and properly placed them in the category of infamous
cri,nes. The constitution of the State, in the fourteenth section of the
third article, confers upon the General Assembly the power to exclude
from every office of honor, profit, or trust within this State, and from
the right of suffrage, every person convicted of bribery, perjury, or
other i?,farmous crim~es; and the General Assembly in pursuance of this
power, after denouncing the offense of oppression, partiality, and general misconduct, upon the part of those entrusted with power, in the
sixteenth section of the sixth article concerning crimes and punishments, in the eighteenth section of the same article declares that
Every person who shall be duly convicted of any of the offenses mentioned in
the preceding sections of this article shall be forever disqualified from holding
any office of honor, trust, or profit, under the constitution or laws of this State,
and from voting at any election.                                        -
And truly, sir, what can render a man more deserving of the lowest
depths of infamy, than the betrayal of such distinguished confidence
as is reposed by a generous, unsuspecting, honest people, in the person
whom they elevate to the position of Circuit Judge?  It seems to be an
instinct almost universal in the human mind, and certainly, sir, it is a
redeeming trait in our nature, to hold the treacherous betrayal of confidence in the utmost loathing, abhorrence, and detestation. Judas
Iscariot and Bendict Arnold will stand the despised and execrated
monuments of mnore than fiendish depravity, as long as treachery has a
signification in human language; but deeply stained as they were by
the crime of treason, they are no more entitled to the universal abhor
398 
MR. ILOTT S ARGUMENT.
rence and execration of which they are so justly the objects, than he
who, called by his country to administer her laws, protect her citizens,
and maintain her institutions in their purity and integrity, ignominiously betrays the confidence of the generous, confiding people, who
have delighted to honor him, and perverts the power with which they
have entrusted him to the advancement of his own private interests,
and the gratification of his own licentious passions. It was just and
wise in the Legislature to exclude from office and from all participation
in the rights of government all who should betray her most sacred
trusts.
With these general principles before you, these plain, unmistakable
landmarks, by which your judgments may be unerringly guided in the
law, that law by which you have sworn to be governed in deciding this
cause, I will undertake to demonstrate that the respondent is guilty
of almost every variety of official crime that diabolical ingenuity could
devise, or human depravity perpetrate.
I have shown that every offense charged against the respondent is a
statutable misdemeanor in office, coming within the strictest technical
construction of tile constitutional provision conferring jurisdiction in
this case; and now I shall show that every one of those charges is true!
In doing so, sir, the means I shall employ will be the testimony of the
witnesses introduced upon this stand, and the records ofifered in evidence; and upon these proofs I shall demand by authority of law that
your judgment shall be predicated, for there is not a single circumstance that can diminish their weight, or cloud their character. It is
true, the respondent has frequently denounced them as his enemies, intending unquestionably to prejudice the minds of this Court against the
testimony they should give; but I appeal to all who have listened to
the evidence in this cause, if in all their experience they ever heard so
much testimony given with so little indication of personal feeling. Who,
I demand, was the witness testifying upon this stand, who seemed to be
actuated by improper motives, or exhibited in his testimony anything
like the influence of a personal bias?  You saw them subjected to the
most harrassing. and frequently insulting, cross-examination by the respondent, without betraying the slightest disposition to do him the
most trifling injustice. No fact was withheld that could possibly be construed by the respondent into an extenuation of his conduct; no indecent forwardness to disclose what might tend to convict him, was manifested by any witness introduced by the State; but in the spirit of honorable, dignified gentlemen, they detailed their testimony with an appearance of calmness, candor, sincerity, and truth, but rarely exhibited
in any court.
That some of the witnesses introduced by the prosecution may entertain feelings of bitterness towards this respondent, I will not deny;
they would be less than human not to do so, after the deep and deadly
wrongs the evidence shows he has inflicted upon them,-the settted plan
of vindictive, relentless, untiring persecution, with which he is proven
to have sought for months to ruin them in their social and business relations. But be that as it may, he has attempted by no legal means to
assail their testimony; he has not attempted to show to this Court that
they are men unworthy of belief,-he dared not do it; he knew that
such an attempt would recoil upon his own head with overwhelming,
crushing weight. He has not attempted to show that the facts detailed
by them are inconsistent with each other, or with the charges, for he
knows that every witness is corroborated by the testimony of others
and the records filed in the case. By such proofs, admitted by the respondent himself to be irrefragable, I propose to show that he was
3 9161 
HIGII COURT OF IMPEACHMENT.
willfully and maliciously guilty of every charge alleged against him at
this bar.
The respondent is charged first with a misdemeanor in office, in being
guilty of willful and malicious oppression, exhibited in the unjust and
illegal imprisonment of Jonas Eaker, because Mr. Eaker failed to make
return to a writ of mandamus that had not been served upon him.
The points made by the State are, that Mr. Eaker had not been served
with the writ, and hence, was under no obligation to pay any attention
to it; that the respondent knew this, and yet for the purpose of harrassing him, or to establish the supremacy of his own opinion, right or
wrong, he, in defiance of every principle of law, issued an attachment,
had Eaker seized and held in custody, and compelled him to answer,
notwithstanding no process had been served upon him,-an act of highhanded, disgraceful, and dangerous tyranny, I boldly pronounce unheard of before il the judicial history of the American government.
It is proper, sir, for mne, before proceeding to an investigation of the
facts proven in relation to this charge, to apprise the Court, by exhibiting the law, what is the proper and legal manner of serving a writ of
mandamus.  In order to do so, I will not trouble you to advert to the
numerous authorities I have at hand,-ona shall suffice. The Supreme
Court of our State, the grand centre of our judicial system, the great
luminary from which our lesser tribunals derive so much of their legal
light, with a precision and accuracy that has ever distinguished that
learned body, has decided in the case of Ladue rs. Spaulding, (17 Mo.
Rep., p. 139,) that a writ of mandamus must be served by delivering it
to the person to whom it is directed, and he makes his return to it;
that it is no  service for the officer to read it to him, and make his return upon it, as he would an ordinary summons; that the original writ
must be delivered to the person required to answer.
Now, sir, what are the facts in this case?  The record which has been
read to the Court shows that upon a certain day the respondent issued
a writ of mandamus to Jonas Eaker, Judge of the County Court, directing him to make return thereto on the first day of the next ensuing
term of the Circuit Court of Stoddard county.  This writ was placed in
the hands of John J. Jackson, Deputy Sheriff of the county, who delivered a copy of it to Mr. Eaker, as he and Eaker both testify, and returned the original to the Clerk, with a certificate of that fact endorsed
upon it, as also appears by the copy of the record here produced.  On
the fourth day of the term the case was called.  Mr. Kitchen, who had
been employed, as he and Eaker both tell you, to represent Mr. Eaker
in the matter? attempted to suggest to the respondent that there had
been no service, and consequently there was no such case properly before the court. There was the original writ, too, with the endorsement
of the officer upon it, showing there had been no service, in court, and
offered by Mr. Kitchen for his inspection.  Mr. Phelan, who had also
been engaged by Mr. Eaker to assist in the matter,-likewise attempted
to obtain a hearing, in order to explain that his client wasunder no obligation to appear; but the respondent, after peremptorily closing the
mouth of Eaker's counsel, arbitrarily demands of Mr. Eaker himself
that he shall enter an appearance and answer to the writ, notwithstanding its defective service.  Mr. Eaker declines to do so, and the respondent issues an attachment, has the Sheriff seize him and bring him into
court, where he is only released from custody upon the condition that
he will the next morning answer to the copy. These facts are established beyond any kind of controversy, by the testimony of Mr. Tyrell,
Mr. Jackson, Mr. Kitchen, Mr. Phelan, and Mr. Eaker. And how, sir,
does he attempt to escape the just consequences of an act of highhanded oppression they indisputably fix upon him? He attempts to
400 
MIR. KNOTT'S ARGUMENT.
show that the defective service by M'r. Jackson was cured before the
attachlment was issued.  You, perhaps, observed the smile of triumph
that illuminied his countenance when he thought he had succeeded in
palming that trick upon you.  But how, pray, does he seek to make this
appear?  He introduces Mr. Dowdy, the Sheriff, and proves by him,
that upon the case being called, and when it was suggested that the
original had not been handed to Mr. Eaker, the respondent ordered
him to take the original and deliver it to him, and tell him to make
return to it; that he did so; that Mr. Eaker refused to receive it, and
then the respondent caused an attachment to be issued, and Eaker to
be arrested. He proves the same thing by Mr. Hicks, who stands in
the court house door, hears the court tell Dowdy to take the original
and deliver it to Eaker, and hears Eaker refuse to take it when offered
to him at the gate of the court house yard. Unfortunate was it for
him, sir, that he offered such proof, for it shows clearly and incontro vertibly that he ]i'ezv the s.er,ice by copy was void and worthless; for other wise he would not have sent Dowdy to Eaker with the original. But
"he that di,ggeth a pit shall fall into it;" and this unfortunate proof
places the respondent in a still more unenviable dilemma, as I shall
show.  I hold in my hand a copy of the writ, which commands Eaker
to appea-r and answer on the first day of the next term of court, which
was the 17th day of May. This record also shows that the case
was called and the attachment issued on the twentieth, at which time
Mr. Dowdy and MIr. Hicks swear the original was offered to Eaker.
So, sir, the respondent has shown, either that he was guilty of the ridi culous absurdity of having a man summoned on the 20th of May  to
answer on the 17 th of the same month, three days after the time men tioniied in the writ for answering had elapsed, or of the perfidy of at temnpting to deceive Mr. Eaker, and induce him to appear and answer
to awrit that had not been served upon him.  I am perfectly willing that
the respondent may explain the ridiculous predicament he has placed
himself in as he best can; but I feel compelled to think he has himself
afforded us one of the strongest proofs of an ignominious and corrupt
determination upon his part to make Eaker answer to that writ of
mandamus, right or wrong!
But what else, sir, does he urge as a defense to this charge? I blush
for the reputation of my State, but it is true,-a Judge of a Circuit Court
in MIissour-i contends that it was Mir. Eaker's duty to come into court
and inform him that this writ of mandamus had not been served!
What an extremely ridiculous position for any sensible man to assume,
let alone a distinguished member of the judiciary of an enlightened
State!  Why, sir, according to this doctrine, if Mr. Eaker had never
h]eard of the wr'it of mandamus, he would have been liable to arrest
and imprisonment for not going into court and informing the respond
ent that it had not been served upon him. And so, sir, 1 suppose that
every citizen in the State, in order to save himself from being,onfined
in jail for contempt of court, or at least to keep out of the clutches of
the Sheriff, must go to the Circuit Court and tell the Judge that no
writ has been served upon him.
If I could assemble around me in one vast audience the honest and
intelligent people of the Fifteenth Judicial Circuit, and tell them their
Judge had expressed, before this learned Court, an opinion so utterly
devoid of the least scintilla of common reason, exhibiting such gross
and palpable ignorance of the most obvious principles of law, not a face
in all that assembly but would burn with shame and indignation that
he had so stultified himself, and them.
It is apparent, sir, that the respondent, in causing Mr. Eakler to be
arrested, acted in violation of law, and further, when he refused to hear
26
401 
IIIGII COURT OF IMPEACHMENT.
the counsel of Mr. Eaker speak in his behalf.  It is a constitutionalprivilege that every man enjoys of being represented by counsel if he desires it.  Halid Mr. Eaker been properly served with process, it was entirely optional with him whether he would have spoken a single word
to the court, or whether he would have left it to his counsel to represent
him; and more than that, if it was proper or necessary for Mr. Eaker
to suggest, when the case was called, that he had not been served with
process, his employed counsel had a constitutional right to make that
suggestion for him, of which no court could deprive them without an.
arbitrary abuse of official power.  Yet, sir, it seems that constitutional
guaranties are mere gossamer when interposed between this J-udlge's
whims and their gratification.   When a regularly licensed attorney
presumes to make a suggestion for his client, hlie is peremptorily ordered
to take his seat, and shut his mlouthli. When he attempts to make a respectful remark, as "ca ffcs corie," he is insultingly and harshly told
that his friendship is not desired by the court.  The lawyers at his bar
must be so many dumb dogs, or make their every sentence coniformin to
the humor of hIis caprice.
But this respondent not only acted wrong in imprisoning Eaker, but
he knew it at the time, and did it to oppress Eaker, to injure Kitchen
and Phelan, and to establish his own supremacy at -the sacrifice of every
opposing obstacle.  Grant him all the mental imbecility he claims, and
still he knew that the manner in which the manda, mus was servedl gave
him no jurisdiction over the person of Eaker, no right to have him arrested,-or why did he send Dowdy to serve the writ over again?  Why
did he discharge Eaker from imprisonment when he simply wrote upon
the copy that John J. Jackson had handed himl, what lie and his lawyers
had both previously told him, namely, that thie writ had been served by
a copy, and he was not bound to answer? "'hiink of that, sir. When the
case is called, he is told by Kitchen and Plhelan there has been no service, and he mereliy insults them for their pains.  He inspects the writ,
finds himself there is no service, and sends Dowdy out to deliver the
original to Eaker, and thus decoy him into an appearance.  Mr. Eaker
is attached, and when he simply writes upon the copy of the writ what
the court already knew. that he had not been served, he is discharged.
Hie had taken it into his head that Eakler should yield to him, and he
determined that he should do so at all hazards, regardless of law, regardless of right. anid regardless of his oath of office.  lie knew that
Kitchen and Phelan had told their client that there was no difficulty
in his cause,-that there had been no sufficient service of the writ; and
he determined if possible to let Judge Eaker know, and to let all that
audience know, that the opinions of Kitchen and Phelan were not to
be relied upon.  Mhr. Hicks gives us the key to this in his testimony.
He sawys, when Ir. BEaker was brought into court upon the attachment,
the Judge said to him, "I don't suppose you meant to be in contempt; I
suppose it was the fault of your lawyers; they didn't kno their duty."
There it is, sir. There's a splendid opportunity to give the professional
success of Kitchen and Phelan a stab; and the respondent eagerly
availed himself of it. Hle bullies them when they dare arise to speak
for their client.  Tie pursues a course toward thiliem calculated to make
all believe they do not know their duty. lie then makes an example of
Ea.ker, to show what difficulties their ignorance brings upon their clients;
and when he is dragged before the court, lie takes occasion to tell the
community through those present that Jonas Eaker has been brought
into trouble through the unreliable advice of his counsel, Kitchen andt
Phelan.
It is a principle well established in the law, that every sane man is
conclusively presumed to intend the probable consequences of his ownv
402 
MR. KNOTTYS ARGUMENT.
act. I shall show the authority for this before I conclude. Therefore,
if you believe the respondent to be a sane mnan, and that it is oppressive
to a man to be imprisoned unlawfully, or to be insulted and brow-beaten
when he offers to speak to a court, you are bound to conclude that this
respondent intended to oppress Eaker and his counsel.  Ah! but says
the respondent, " Mr. Eaker did not think my conduct oppressive."
Sir, have you forgotten the evidence of Washington Carlisle? Did he
not tell you that M-r. Eaker presented this respondent to the grand jury
for this very act of oppression? If he did not think it oppressive, why
did lie make the affidavit he did, and cite the sixteenth section of the
sixth article of the act concerning crimes and punishments?   lHas the
respondent forgotten that little slip of paper that caused such a trepidation in him when it fell into the hands of the grand jury?  I will re mind him of it before I get through.  If he intended to oppress Eaker,
or Kitchen, or Phelan, and willfully did any act tending so to oppress
either of them, hle is guilty of a misdemeanor in office; and for every
misdemeanor in office he is liable to impeachment.  There is no evading
this conclusion.  It will force itself upon you.  It is the evil intent you
are to punish, not the amount of damage done.
Now, sir, the proof upon this article plainly shows the respondent willfully and maliciously guilty of three distinct offenses: disgracing the
bench by a hectoring, contumelious, and insulting demeanor towards
members of his bar, who were in the respectful and proper discharge of
their duties; peremptorily and tyrannically depriving a citizen of the
right guarantied to him by the constitution, of being heard by his counsel; and of violating the sacredc right of personal liberty, in open contempt of every safeguard the constitution and laws of our country have
sought to throw around it.  And to vou is submitted  the question,
whether such conduct, such open, gross, and inifamous acts of unrestrained tyranny, shall be permitted to pollute your judiciary, destroying
its efficacy, defeating all the beneficent objects for which it was established, and rendering it,an engine of oppression to our citizens of the
most dangerous and despicable character; or whether the majesty of law
shtli be viindicated, and the purity and dignity of our institutions protected.
You must go home and tell your constituency that you have licensed;
the courts to insult, abuse, and brow-beat any counsel whom they may
employ to represent their interests; that you have licensed them to cornpc-l the citizen to answer to process whether it has been served upon
him or not; that you have given them permission to drag the citizen
away from the demands of his business, however urgent, from the bosom
of his family, however much they may require his presence, and compel
him to answer to a process that has never been served upon him: or
you must tell them we have established the subordination of official
authority to the law of the land; we have set the seal of conldemnationil
upon judicial oppression; we have taught all whom the people have entrusted with power that they cannot render that power subservient to
the gratification of their own passions without expecting certain and
just retribution.
I cannot, sir, consistently with what yet remains for me to do iii connection with this cause, dilate elaborately upon the character of the conduct of which the respondent is proven to have been guilty in this instance, nor upon the consequences that must inevitably result from permitting it to be indulged in without restraint by the courts of the coulntry.  I must leave it to those- who have inherited the priceless legacy of
freedom from the battle-beds of revolutionary sires, to determine whether
it is worth the protection of the law, or is to be surrendered to the caprice of every petty despot who may be disposed to lord it over them:
403, 
IhIGH COURT OF IMPEACHMENT.
for the field yet remaining for me to explore is far too wide; subjects
demanding the scrutiny of this Court, and the condemnation of every
patriotic citizen of the country, and remaining to be considered, are too
numerous and too execrable in their natures to justify me in lingering
upon the threshhold of the case. I must proceed to the next charge exhibited against the respondent, and request the Court to apply the facts
disclosed by the evidence to the accusation; and if I am not much mistaken in the effect of plain, unequivocal testimony, upon honest and intelligent minds, I will be sustained in the assertion that no case was
ever more clearly and fully established.
By the record, sir, which I hold- in my hand, and which has been read
as evidence to the Court, it is shown that at the November  term, 185,
of thie Stoddard Circuit Court, there was pending the case of Matthew
HI. Moore against James Walker, instituted by Mr. Moore for the purpose of obtaining possession of certain lots in the town of Bloomfield,
where both the respondent and Mir. Walker reside.  The second article
e.harges upon the respondent an exhibition of willful and corrupt partialitv in this case, utterly inconsistent with the duties of his position as
.Judge of the court in which the cause was pending, disgraceful to the
character of the judiciary of the State, and in direct violation of the
law it was his most sacred duty to maintain and uphold; and  the evidence proves the charge true to the very letter.  He is ciargeil with
advising Mr. Walker not to compromise this suit, assuring him that the
field-notes of the towvn were lost, and that he would be successful.  And
M[r. AVallker tells you in his testimony that there had been overtures
of compromise made to him by Mr. Moore, but not being acceded  to
by him, were withdrawn; that one evening during the November term,
18-5, of the Stoddard Circuit Court, the respondent camie to him, near
his stable in Bloomfield, and asked him if he and Moore had settled
their difficulty about these lots; he told the respondent they had not,
and he didn't know that they would; and that the responident said to
him,'I would not do it; the field-notes of the town are lost, and he
can't hurt you." Here, sir, it is shown that he not only advised Walker
not to compromise, but gives him his opinion upon the merits of the
case; or rather assures him he will gain it, and gives him one of the
best reasons for that opinion in the world, namely, that the field notes
are lost and lMoore can't identify his property. It is a matter of no
kind of consideration with this immaculate Judge how justly Mr.
Mloore may have been entitled to the property in question, how much
he had paid for it, or how unjustly Walker may have been keeping himi
out of it; he discovers a defect that must necessarily exist in Moore's
proofs, and fearing that Mr. Walker is an honest man,-for this Court
will say he does carry the very index of honesty in his face,  and will
make a compromise in which justice may be done to both parties, he
descends from the bench, finds Mr. Walker out, and officiously sets
himself to work to fortify his mind against any such comrnomise, and
gives him such assurances of success as to insure his not accepting
Moore's proposition for an adjustment of the difficulty existing between
them.
WVhat a splendid example of judicial purity and impartiality is here
presented! I challenge the world for a production of its parallel since
the days of the illustrious Jeffreys, whom this Judge so successfully
emulates!  How the world will admire, and our own citizens venerate,
a system that permits the Judge to act as counsellor for aniy party he
may3 feel disposed to favor! How we should congratulate ourselves
that it has been reserved for a Missouri Judge, with a single exertion of
his towering genius, to make a discovery in the science of jurisprudence
that the long succession of ages required for the perfection of the com
404 
MR. KNOTT'S ARGUMENT.
mon law was inadequate to develop! How little our Legislature
understood of the natural prerogatives,-"the divine right,"-of the
judiciary, when they declared by statute that no Judge should act as
counsellor in any case, and that for any willful partiality he should be
fined a thousand dollars and imprisoned in the county jail for twelve
months!
But the respondent says he gave this advice to Walker after the case
had been removed by change of venue!  Then why did he ask Walker
if he had settled it? If he had just before made an order moving it
out of the circuit, it is but reasonable that he should have known it was
not settled, without asking. But unfortunately for the respondent, sir,
Mir. Walker says he made no secret of what the Judge had advised him;
he went straight and told several that he was safe; the Judge had told
him he could gain his case. And Mr. Moore tells you he heard of the
Judge having given this advice before he filed his petition for a change
of venue.
The respondent then shifts his ground, and says the advice was given
after the notice was given that a petition would be presented for a
change of venue! But this won't do; for it is not in evidence that any
notice of the kind was given.  On the contrary, Mr. Moore tells you he
prepared a petition and swore to it, and left it with Mr. Tyrell to obtain
the change of venue for him, and went home without doing anything
more.  Sir, the respondent is forced to try another defense, and he does
,.so; but what is it? Why, that this suit of Moore against Walker affectod his interests incidentally, or collaterally; that he was the owner of
lands somewhere contiguous to Bloomfield, the title to which was inii
some manner connected with the matter in controversy between Moore
and Walker. I don't know whether this is true or not, sir. Mr. Tyrell,
1Mr. Bartlett. MIr. Kitchen, Mr. Phelan, Mr.  Bedford, Mr. Miller, Mr.
Hicks, and Mr. OwNen, the Recorder, all live in Bloomfield, but you hear
a syllable of no such thing from any of them.  But suppose it ia true:
it only shows the conduct of the respondent to be if possible more corrupt and perfidiouss,-springing from motives of selfish interest.  Let
the respondent reflect fbr a single moment upon the unhappy  predicament in which this wonderful defense places him, and he will see that
he has exhibited himself to the world in the attitude of a Judge sacrificing the interests of a private party to the preservation of his own,the meanest act, the basest tyranny of which he could have been guilty
had he put his invention on the rack to produce the sublimated essence
of corruption.  My God! what a spectacle! A Circuit Judge, holding
in one hand the law which was intended to protect alike the humblest
citizen and the highest official in the State, andl which he has sworn
to apply faithfullv to the protection of all; while with the other he
ruthlessly seizes upon the rights of the defenseless private wizen, and
immolates them upon the altar of his own self aggrandizement! Can
anything be more horrible or terrifying to the patriotic citizen?  No
matter how just MNfoore's claim to the property in question may have
been, the establishment of it would have interfered with the interests
of the Judge;  andt therefore the Judge may justify himself in violating
the law aind his oath of office, and in bringing disgrace upon the judiciary, by descenling  from the bench and taking upon himself the burden of his adversary's defense!'The law, I suppose, is not made for
the private citizen; it is only to enable the pampered despot, mantled in
judicial robes, to sacrifice the rights of all around him to the preservation and advancement of his own interests! "Oh! shamne, where is
thy blush!"-when a Judge can resort to such a plea as this! —when he
can ask this Court to tell the citizens of Missouri that, when their rights
405 
HIGH COURT OF IMPEACHMENT.
conflict with the interests of a Circuit Judge, the law affords'them no
protection!
It is established by the evidence beyond the power of controversion,
that the respondent did act partially in this case; that he prejudged it,
and apprised one of the parties of his judgment. Nowv, had he a right,
or was it proper for him to have expressed an opinion in relation to it
to anybody, let alone one of the parties? One of the most celebrated
of the English Judges refused to express an opinion out of court upon
a case likely to come before him for adjudication, even when specially
solicited to do so by the king himself, upon the grounds, that if a man
express an opinion in one place, the pride innate in every human bosom
would influence him to make good that opinion anywhere else. So
that if a Judge should give an opinion when off the bench, he would
at least be tempted to support that opinion when on the bench, although
wrong.
But, sir. if a Judge may be permitted to advise a party litigant before
him in one case, he may in every case; and if he is permitted to espouse
the cause of any party he may select in every case, the inquiry becomes
pertinent, at what stage of the proceedings the privilege attaches, and
at what stage he must cease its exercise. Can there be any restriction
to the exercise of such a privilege by a Judge, unless it is prohibited
entirely?  What is to prevent him from giving his friend the advantage
of his counsel, from the drafting of the declaration to the levying of
his execution?  Sir, establish this doctrine, and no man will appeal to
the laws of his country until he has secured the good will and advice of
the Judge; and to obtain this he would bring to bear upon him every
appliance that can possibly tend to influence his feelings, so that a
thousand avenues will be opened at once, through which corruption in
as many insidious forms may invade the judiciary and effectually annihilate its efficacy, before any adequate remedy can be applied.  The
rich suitor, by means of his wealth. will procure a speedy promotion of
his interests, at the expense of law and justice, while  the squalid victim of " chill penury" will die at the gates of the temple of justice ere
his cause is reached, through the immense accumulation of more favored
causes in which the Judge is interested as counsellor.   The friendless
child of poverty will be permitted to rot in the suffocating vapors of the
dungeon for a crime of which he is perhaps innocent, while red-handed
murder will walk abroad at noonday arm in arm with the powers of
the law and the administrators of justice.
Sir, it was wrong-common sense says it was wrong  for this respondent to act as he is proven to have done in this instance; and the
statute not only plainly forbids a Judge to act as counsellor in any case,
but provides that he shall be fined a thousand dollars and confined in
jail for a year for any exhibition of willful partiality. Was he willfully
partial?   Was his advice voluntary or involuntary?  Did he go  to
Walker of his own accord and in his sane mind give him'this advice,
or was he compelled to do it? If he was in his proper senses and under
no conmpulsion, the act was willful; there is no escape from it. IHe
tells you himself he did it because he had an interest in the matter;
that it either directly or remotely involved the title to his own land.
But. sir, there is another motive developed by the evidence.  Mr. Moore
tells you the respondent was unfriendly to him; and in consequence of
this prejudclice he was compelled to take a change of venue. Here, then,
are sufficient incentives upon a will ready to be influenced to do wrong,personal aggrandizement, and vengeance upon an enemy, hand in hand,
both to be accomplished by one bold stroke of official crime!
I will dwell no longer upon this charge. The offense it alleges has
been clearly proven. This Court will stamp it indellibly with tihe seal
406 
MR. KNOTT'S ARGUMENT.
of indignant condemnation, and a virtuous, intelligent, and patriotic
constituency will affirm the judgment.
I will now request the Court to turn their attention to the facts
developed by the testimony in relation to the third article, in which the
respondent is charged with willful and malicious oppression in sending
the case of Limbarger vs. Powers from Wayne to Mississippi county, upon
a change of venue.  Mr. Fox and Mr. Bedford tell you that they were
the counsel for the two parties,-Mr. Fox acting for Mr. Limbarger, and
Mr. Bedford for Mfr. Powers.  That when  Mir. Limbarger had determined to have the cause removed to another circuit, on account of the
prejudices of the Judge being arrayed against him, there was a consults
attion between them as to the proper county to which the case should
be sent.  Mr. Fox proposed Madison, but Mir. Bedford objected to that
county because Mr. Fox resided there. Iron and ]3ollinger were then
mentioned. and it was agreed that either of them would be suitable.
Whereupon Mr. Fox presented his petition to the Judge for a change
of venue; the Judge examined the petition, and in a tone of voice
betraying considerable feeling ordered the change to M;ississippi county.
Air. Fox instantly arose to expostulate against the cause( being sent to
so remote a county, and assured the court he had consulted Mr.  Power's counsel, and they had agreed the case should be sent either to Iron
or Bolliner.  Air. Powers, and Mr. Bedford, his counsel, were both
present and tacitly assented to MIr. Fox's representations of the agreemnent.  Put the respondent in a harsh and insulting manner orders
iMr. Fox to shut his mouth; " the order has been made and shall not
be changed."  Mr. Pipkin, who was associate counsel with Mr. Fox for
Mr. Limbarger, arose, and in a respectful manner called the attention of
the court to the fact that either of those other counties would be suitable, but that send,ing the cause to Mississippi would drive him out of
the case.  To M'Ir. Pipkin the respondent replied in a rude and insulting
style, that it was no concern of his if he'was driven out of the case; and
when 3Mr. Fox requested him to rescind the order entirely, and informed
him he would rather the case should remain where it was than to follow it to Mississippi, the respondent told him he would fine him if he
thought it would not be construed into a personal matter. That these
are the facts, sir, there can be no possible dispute. No witness he has
introduced controverts any of them.  Mr. White merely states he was
not consulted at all about it, but it was never pretended by any one that
he had been.  Mr. Powers was introduced, but he merely states that M;r.
Bedford objected to the case going to Madison, as Bedford says himself.
Now, sir, was this conduct proper, or was it oppressive?  Examine the
fourth section of the statute regulating changes of venue, and you will
find the duty of the court under the circumstances clearly defined. It
was simply to ascertain what county would be most convenient to Mr.
Powers under all the circumstances, and to award a change of venue to
that county.  But does he do so?  Mr. White, Mr. Fox, A. Bedford,
and others I believe, testify that from Greenville, the county seat of
Wayne, where this cause was pending, it is by the usual route over a
hundred miles to the county seat of Mississippi; while from the residence of both parties to Ironton, the county seat of Iron, it is only
about twenty or twenty-five miles, and about twenty-five to the county
-seat of Bollinger, from the same point.
The parties are therefore compelled to travel four times as far, and
subjected to four times the expense; while there is not a single advantage insured to either.  On the contrary, the trouble and expenses
,of both parties are not only multiplied to a grievious and burdensome
extent, but the chances of a speedy trial are very materially diminished; for it is hardly to be presumed that all the witnesses on both
407 
IIIGIH COURT OF IMPEACH3IENT.
sides of the case could find it convenient to leave their families and
business and go upon a journey of over a hundred miles, while there
would be but comparatively little difficulty in procuring their attend ance upon a court within twenty or twenty-five miles of them. And
more than that, sir, every single lawyer engaged in the cause is compelled to abandon it! Ah! but says the respondent in his answer to.
this article, with a recklessness characteristic of him, "I supposed
good lawyers could be obtained in Mississippi." I have no reason, sirr
to suppose otherwise myself; there may be, and no doubt are, learned
and talented lawyers there; but I ask if that fact justifies the respondent in tyrannically snatching business out of the hands of Fox, Bedford,
Pipkin, and White? The respondent intended that portion of his answer as a witticism, and I am quite content he shall have the benefit of a
sarcasm purchased by a forfeiture of the respect of every good man that
will read it.  Had hle a right to compel Limbarger and Powers to resort
to counsel they had perhaps never seen, although they atight have been
learned and talented?
But, sir, did the respondent willfully intend to act oppressively in
this instance? If the probable and reasonable consequences of his act
were grievous and oppressive, you are compelled by the law under
your oath to conclude that he maliciously did it for that purpose. If I
deliberately fire a pistol in the midst of this audience without any assignable motive, and a man is thereby slain whom I have never seen
before, it is a conclusion of law-an inevitable, conclusive presumptionthat I maliciously intended to take that man's of life, and I will be
held guilty of murder. Aind, sir, the same principle applies to every
variety of voluntary human action. If a man do any wrongful act
whatever, by which any injury accrues to another, he is conclusively
presumed by the law to do the act for the purpose of inflicting the injury
naturally resulting from it.  Now, sir, was it likely to be any more oppressive to Limbarger and Powers to be compelled to undergo the hardship of over four times as much travel as was necessary? Was it right,
or would you consider it oppressive, to quadruple the costs, and diminish the chances of a speedy trial, by sending their cause over a hundred
miles away,-where, sir, you are informed it has not been tried to this
day,-while there were three courts within twenty or twenty-five miles
of the parties where no obstacle to the proper administration of justice
existed? Will you entertain no suspicion of oppressive, malicious intent
upon the part of this man, when you see him selnding a case /hrouegh
three counties,-Cape Girardeau, Bollinger, and Scott,-either of which
would have been much more convenient to all concerned than the
county of Mississippi?  Was it no oppression to Mr. Fox, Mr. Pipkin,
or Air. Bedford to be driven out of their case, when there was not the
slightest necessity for it? He cannot plead ignorance of the probability
that all these consequences would result from his unprecedented order
in this cause, for he wvas told earnestly and repeatedly by consel at the
time that it would be so, and on the next morning was requested to
rescind the order and leave  the case there, subject as it was to
be biased by his prejudices, rather than that the parties and witniesses should be subject to such unheard of inconvenience and hardship; but, sir, these expostulations are only answered by contumely
and insult.
WVe are not, however, left to a presumption of malice only; the circumstauces attending the case, every one, tend to shlow he was acting directly under the influence of that passion; for, sir, if he was actuated
by no bitterness of feeling, if he intended to do the parties or counsel
no wrong, why did he, when they attempted  to address him in a respectful manner. answer them with an insult? If there was any valid
408 
MR. KNOTTS- ARGUMENT.
reason why the cause should not have been sent to Iron, Bollinger,
Cape Girardeau, or Scott, why did he not with that politeness always
characteristic of a gentleman point out the obstacle? Or if M/ississippi
was the only county to which it was proper to send the case, why did
he not gentlemanly and courteously suggest the reason? If he did not
intend to oppress the lawyers engaged in the case, why did he manifest
such a brutal disregard for their feelings as well as their interests?
Why did he persist in a course that he was assured would drive them
out of the case, if he did not intend they should be driven out? And
why, sir, I ask, does he claim in his answer to these articles the despotic
prerogative of sending a case to any county, however remote? Because,
sir, a habitual course of reckless disregard to the rights and interests of
all others had induced in his mind the idea that he was supreme,
sovereign in his own courts.  He is actuated by no bad motive, although
when a petition for a change of venue is presented to him, he imposes
grievances of the most unprecedented character, and when respectfully
requested to mitigate the consequences of his order by selecting a more
convenient county, he insults and abuses all concerned by an outburst
of angry passion disgraceful to himself and disgusting to others. But
pardon me, sir; I forgot that he never becomes disturbed or excited!
The current of his feelings is as gentle as the breath of evening's zephyr
kissing the violet's closing eyes. His temper is as placid as sleeping infancy, as harmless as the dimpled smile of the new-born babe. The
milk of roses runs through his every vein.  He never says anything
that will wound a lawyer's feelings!
I need not, Mr. President, enter upon a minute examination of the
evidence to demonstrate that almost a precisely similar course of unjust
and unwarranted oppression was pursued by the respondent, as charged
in the fourth and fifth articles. The three cases mentioned in these articles are sent to Pemiscot county, in spite of the protestations of Mr.
Phelan and MIr. Bedford, and I believe some others of the lawyers engaged in them, that it was the most inconvenient and inaccessible county
that could be selected, and would effectually drive them out of the
cases. But the defendant comes in, and in his defense to these two articles admits the correctness of the principle laid down by the IHouse of
Representatives, that it was his duty to send these cases to the most
convenient county, by contending that he did so,-that Pemiscot was
most convenient to all parties. This I do not believe; the respondent
don't believe it: and no sensible man can believe it from the testimony.
It is true, sir, as Mr. Bedford tells you, that Dunklin and Pemiscot
counties are geographically contiguous, but there is between them an
almost impassable swamp.  Mr. Walker, one of the respondent's witnesses, tells you that at certain seasons of the year, when the water is
too lowv to be navigated in boats or dug-outs, and the mud too deep for
horseback travel, it is entirely impassable; and he is corroborated by
Mr. Bedford and Mr. Phelan, Dr. Horner, and perhaps others, when
he says that communication between the two counties is carried on by
means of dug-outs or skiffs, or other small craft. Ile also tells you
that from the point of embarkation in Dunklin to Portage, in Pemiscot,
is about sixty-five miles, and from Portage to Gayoso, the county seat,
about fifteen, making about eighty miles' travel for the parties and witnesses by the dug-out and skiff route; while Mr. Bedford, as well as Mr.
Walker, tells you that in order to go from one county seat to the other,
by land, you would be compelled to travel over two hundred miles, and
that through Scott and New MZadrid.  Dr. Horner tells you that he
thinks Pemiscot is the most convenient county; but although the Doctor
honestly thinks so, you do not, I am confident, even from the facts ex
409 
HIGH COURT OF IMPEACHMENT.
hibited in his own testimony. He tells you that this swamp must be
crossed in boats of some kind. lie tells you in answer to a question
propounded by myself, that but few, if any, of the witnesses or parties
in these cases, keep dug-outs or boats for the purpose of crossing the
swamp; that in order to cross, each party must pay five dollars ferriage, and hire a horse or other conveyance to travel the remaining fifteen miles over land, which would cost an additional dollar, whilst the
distance from one county seat to the other, and the average distance
traveled by the witnesses, according to his testimony, would be about
thirty-five miles. Now, sir, here is an expense incurred by each witness
in going to and returning from the place of trial, of twelve dollars for
traveling expenses alone, without his board-bill; and what, according to
the Doctor's estimate of the distance, will he get in fees? Why, sir, five
cents a mile, each way, making three dollars and fifty cents, which, taken
from his traveling expenses, leaves each witness minus eight dollars and
fifty cents of his own money, granting that the dollar a day he receives
for each day's attendance at court will pay his board-bill.  Yet, sir,
there is no hardship, no oppression in forcing these witnesses to incur
this expense, or, rather, in depriving the parties of the benefit of their
testimony, for you very well know not one of them would attend court
under such circumstances.
But the respondent contends that, as the defendants in each of these
cases took the change of venue, he was bound to send the causes to the
county most convenient to the plaintiffs.  This is very true, but what
county would be most convenient? Why, manifestly, that county in
which the speediest trial can be obtained, with the least expense; for it
behooves a plaintiff when he is compelled to resort to the law, to have
the earliest determination possible of his rights.  Now, sir, how does
Pemiscot county suit the plaintiffs in this particular, according to the
evidence of Dr. Horner, the respondent's main witness? He tells you
that the county seat of this county is extremely liable to inundation,
particularly in the spring of the year, and that in consequence of the
high waters there has been no court in that county for the last two
springs! So that, although he is counsel in all three of these cases, he
has not been in Pemiscot county since they have been sent there, nearly
two years ago.  Mr. Walker, another one of the lawyers in these cases,
says he has not been there.  Mr. Phelan, Mr. Bedford, and Mr. Kitchen
have not, and never expect to be.  The Judge of the Circuit Court has
not even been there. So the cases have not yet been tried, and the Lord
knows when they will be! Yet the plaintiffs can be kept out of their
rights for years, witnesses and parties be subjected to an enormous traveling expense, lawyers driven out of the cases and deprived of business,
and still there is nothing wrong or oppressive in all this!
I think this Court is fully prepared to appreciate the motives that
actuated a course of conduct unjust, arbitrary, and oppressive, as this
must surely be regarded by every honest man.  Here arlKitchen, Phelan, and Bedford, all of whom the respondent dislikes, and holds himself
prepared to annoy and harrass whenever a convenient opportunity is presented. They assure him that by sending these cases to Pemiscot, he will
deprive them of the right and privilege of attending to their clients'
causes.  His evil nature prompts him, and he says in his heart, " Ah
ha! I have now a chance for vengeance, and I will embrace it by using
my official power to diminish the business of these loathed objects of my
hate. I will compel them to try all their causes before me, or they shall
not try them at all. I will send them to the utmost parts of the State,
or I will drive them out of their cases."
He was fully apprised of all the evil and oppressive consequences that
would result from his action in these cases; he was assured that the
410 
MR. KNOTT S ARGUMENT.
counsel for the parties had, in all the cases, agreed upon a county where
such difficulties did not exist; and there is no escaping the conviction
that he deliberately and maliciously intended that the oppressive and
burthensome consequences should result from the changes of venue that
have been proven to exist in these cases.
Now, sir, I presume that the statute allowing changes of venue was
enacted for the best of purposes.  It was, sir, that the stream of justice,
emanating from a fountain of crystal purity, might be preserved from
even a suspicion of contamination. It was, sir, that society might be
enabled to comply with its compact with each of its constituents with
the utmost fidelity, and that the law might in every instance be administered without the possibility of injustice; and it is foryou to say whether
this beneficent object shall be defeated, and the means ordained for its
accomplishment made a machine for the oppression of those it was designed to protect; or whether it shall be carried out in good faith. Your
duty, sir, is too plain for further argument or comment. If the citizen
who sees proper to avail himself of his legal right to have his cause sent
for trial to a court where he can obtain justice is subjected to insult,
abuse. and oppression. for claiming that privilege, and there is no redress for the wrong, it is a disgrace to the character of the State to allow
that provision to remain in the statute a single day longer. It is a deceitful promise of a privilege to the honest citizen that is impossible to
be observed in good faith.
The respondent has said, with his usual regard for his legal reputation,
that however wrong and injurious his conduct in these cases may have
been, the proper remedy was by appeal to the Supreme Court; that there
the party injured can get full redress for any oppression to which he
may be subjected in having his case sent to a remote and inconvenient
county.
I will not insult the good sense of this Court by asking you to seriously
notice for a single moment a position so extremely ridiculous, for every
one must see at a glance that the Supreme Court could only say what
the statute itself says, that cases must be sent upon changes of venue to
the most convenient county; and besides, the order changing the venue
of a cause confers upon the court to which the cause is sent complete
jurisdiction over it, and if that court is guilty of no error after the cause
comes within its jurisdiction, the order sending it there would be no
grounds for reversing the judgment, simply because the county was remote and inconvenient. A lawyer that would express such an opinion
ought to have his license taken from him; but even if correct, this proceeding is not intended to redress private grievances. It is to punish a
public outrage, and prevent a recurrence of such dangerous and disgraceful offenses in future.
But, sir, I must proceed to the consideration of the charge contained
in the sixth article, which, I must say, sir, sustained, as I shalL show it
is, by the most irrefragable evidence, is well characterized in the article
itself, as not only unbecoming the position of this respondent as a Judge,
but disgraceful to his character as a man. No man of proper feelings,
no man whose bosom is animated by the noble sentiments that give the
human being preeminence in the scale of created beings, can contemplate the facts developed by the witnesses in relation to this and the
succeeding charge, without a thrill of indignant horror.
There is a degree of magnanimity in an open foe, who places himself
upon an equality with his adversary, who would scorn to avail himself
of a mean advantage over his enemy, and who would spurn with indignation a revenge to be obtained by ignoble means.  Even the deadly
rattlesnake that coils in our path is entitled to a portion of our respect,
because he gives us warning ere he strikes his renoined fangs into our
411 
HIGEH COURT OF IMPEACHMENT.
flesh.  But here, sir, we have a Judge of the Circuit Court, sheltering
himself under the panoply of his office, making use of the power inci dental to his position to glut a fiendish vengeance, by affixing to the reputation of a lawyer practicing in his courts a foul and damning slander,
that must haunt him like an unquiet spirit through his whole life. Here
we see a grave and dignified Judge, seated upon the bench for the administration of justice, in open court, in the presence of a large concourse
of citizens from all parts of the country, deliberately accusing a lawyer
at his bar of a disgraceful crime; and when that lawyer offers to repel
the charge, his foul traducer locks his mouth, that the crowd, infected
by the poison of his slanderous breath, might spread it far and wide,-that
the current of base detraction his malice had set in motion might grow
into a resistless tide of calumny, whose remorseless waves would forever
swallow up the fair fame of his unhappy victim.
Sir, there is no escaping the weight, the force of the facts we have
proven.  Mr. Bedford and Mir. Kitchen, as well as Mr. Phelan himself,
tell you that while the case of Gibson vs. Dunn was on trial in the Butler Circuit Court, Mr. Phelan, being one of the counsel in the case,
arose to address the jury, when the respondent accused him from the
bench of tampering with the grand jury; that Mr. Phelan offered to say
something in reply, but was told by the court he should not,- that he
should go on with that case, and explain afterwards; and that Mir. Phelan replied, " I think not, Judge," and sat down.
Now, sir, here it is plainly proven that this Judge, without any apparent cause, charges M,r. Phelan with the crime of emltracery, tells him he
is in contempt of court, and refuses to allow him to utter a single syllable
by way of denial or palliation of the charge; and the respondent, feeling the overwhelming weight of this proof, pretends that he merely
intended to notify Mr. Phelan that he was in contempt! Is that the way
such notice should have been given, sir, by enunciating a foul slander
against him, to be scattered by that crowd far and wide through the
country? I must be permitted to say, sir, that this excuse, in my opinion, is an after-thought; that such an intention had no nexistence in the
mind of this respondent at the time he made the ignominious assault
upon Mr. Phelan's character, because we hear nothing more of this
alleged contempt after the slander is perpetrated. This immaculate court
makes no further attempt to vindicate its wounded dignity. Mr. Phelan
is never called to the bar, notified explicitly of what his offense consisted
in, and permitted to defend himself. None of these things were done,
because this Judge knew that Phelan was innocent of any wrong. He
had accomplished his design, and sated vengeance, like the gorged lion,
slumbered in its lair.
But what had Phelan done to call this storm of judicial wrath upon
his head? Let us probe this matter to the bottom, and see whether
this respondent's conduct upon that occasion was actuated by such a
tender regacrd for the peace and dignity of the State as he would fain
make you believe, or whether it sprung from other motives.
It seems, sir, that the respondent had been guilty, or at least supposed
to be guilty, of some kind of oppression or other misdemeanor in office,
for which Mr. Phelan, the injured party, had, as every other citizen of
the State who feels himself called upon has, a right to make complaint
to the grand jury.  It is also in evidence that this respondent was
boarding with one WVilliam Henley, a bosom friend and crony, who
was a member of the grand jury; that during the recess for dinner on
the day in question the respondent and Mr. Ilenley had a private
interview, in which 3ir. Hlenley informed the respondent that Mr. Phelan was about to prefer a charge against him for official misconduct,
oppression, or some abuse of official power. This intelligence, while it
412 
MIR. KNOTT S ARGUMENT.
excites his fears of personal disgrace, and arouses his invention to devise
means of escape, calls out all the envenomed feeling,hat rankles in his
bosom, all the malice that belongs to his revengeful nature. He fears
he will be indicted, and he seeks to forestall public opinion by laying it
all to the malignity of Phelan. Hle desires to create the impression in
advance that the indictment against him was obtained through the
criminal interference of Phelan with the grand jury.  lie intends, too,
to ruin Phlielan's character.  Hle therefore selects the moment when all
eyes are upon him, when he is just in the act of addressing a jury, knowing that if he does not succeed in blasting his reputation hlie will so discompose him that it will be impossible for him to acquit himself with
credit in his case. I ask every reasonable mind if these conclusions are
not legitimate from the evidence?
But, sir, the testimony gives this dark picture of official corruption a
still more revolting feature.  Mir. Phelan tells you that, when he found
he was not to be permitted to vindicate himself, hlie sat down and drew
up an affidavit accusing Mr. William Henley with having disclosed the
secrets of the grand jury; and you are told by members of that grand
jury that, when this presentment was made by Mr. Phelan, Judge Jaclkson can-e into the grand jury room and told them they could not indict
Henley for what he had done: that a member of the grand jury had
a right to tell the ]Ju(lye anything that transpired before them in their
retirement; that it took the grand jury, the Judge, and Circuit Attorney to constitute the court!  What makes the Judge any more  the repository of the secrets of a grand jury than the Clerk, or Sheriff, or
any private citizei, I can't see; nor can I divine why they should be instructedcl that they could violate their oaths by telling one man the
secrets of their deliberations and not another. But, sit, let the honest,
intelligent constituencies of Missouri contemplate this disgusting spectacle ot judicial corruption; let them behold one of their Circuit Judges
guilty of the grossest acts of oppression and misconduct, brutally tyrannizing over an unoff'endiing citizen because he has dared to appeal to the
powers of the law for protection, and then descending from the bench,
obtruding upon the privacy of the grand jury, and there using the influence of his official position to shield a bosom friend from justly
merited punishment, because he had warned him that an inquiry had
been instituted before the grand jury as to the propriety of his official
conduct; and if there is an honest heart that will not revolt at the
loathsome, disgusting sight, my  imagination can conceive of no exhibition of abject., foul, fiendish depravity that could excite its condemnation.
But, sir, the respondent seeks to palliate this charge because Mr.
Kitchen tells you that, after the respondent had refused to permit Phlielan to defend himself against the accusations he there publicly alleged
agatinst him, Phielan remarked that the charges were jMt.se or a lie,
which expression he did not recollect.  Ah! sir, how greedily the respondent caught at that morsel of evidence! How he clung to it!  But
I appeal to you-i appeal to every member of this Court-I appeal to
everv one whose bosom hleaves with the emotions of a human heart, if
you had been thus assailed,-if a disgraceful criminal charge had been
brouglit against you in the presence of hundreds, who would scatter it
among, the community from which you draw your support,-if your lips
had been sealed. and all opportunity of self-defense denied you,-had it
been the last act of your life, would you not have hurled the lie into
the teeth of your vile accuser, with an indignant, scornful defiance that
would have transfixed the foul tyrant upon the spot?  If there is one
here who claims the name of an American freeman that would not, let
413 
HIGHl COURT OF IMPEACHMENT.
him seek another land,-let him go to climes where the very air he
breathes will awaken no noble, no manly emotion in his soul!
The next article, sir, contains a charge of a kindred nature, but of even
more atrocity, and is as unequivocally sustained by the proof. It is here
charged, sir, that without provocation even, much less legal cause, this respondent from the bench, in open court, accused David M. Fox of the
crime of perjury or subornation of perjury!  Mr. Fox, Mr. Bedford,
and fir. Kitchen, all tell you plainly and emphatically that the respondent called the attention of Mr. Fox to a piece of paper which he held
in his hand and asked him if he wrote it, or if it wvas in his handwriting. Mr. Fox replied that it was. The respondent then said to him,
"siri, you have either s8.oo'n to a tic yourself, or i2eaJlc your cjient do so."
It did not escape your observation how the respondent hung out for the
cract words when the witnesses were testifying, nor how he prevaricated
when he came to speak of the testimony upon  this point yesterday.
Nor, sir, have you forgotten how clearly all the witnesses corroborated
each other as tthehe exact words used by the respondent. Hlad a mnieteor
exploded in the court room at the time of which they spokle they would
have been as likely to have forgotten it as the remarkable language
used by the respondent on that occasion.  MIr. Bedford says, "for some
reason there appeared to be a hiatus in the business of  the  court, and
Mr. Fox and myself were seated at a table close togetlier,- Mr. Fox
was perhaps writinig when the Judge called his att(ention to the paper,
and asked him if he wrote it," &c.  No one was looking for such an extraordinariy outburst. It was like a startling peal of thunder in a clear
sky; it made an impression never to be effaced.  That hlie used the idelntical language they swear to, there can be no par)ticle of doubt.  True,
IMr. Hicks in his testimony says, that his recollection is dii.tinct that the
language of the Judge was, "one of these must be falsc-e" but it is clear
that he alludes to an entirely difl.('rent case.  Mir. Fox tells you the paper (and at the time the Judge had but the one paper in his land) was
an amended answer in a case in which the original answer had been
stricken out; that his client had made affidavit to one and ihe to the
other; hence the expression "you have sworli to a lie yourself, or made
your client do so."  Mr. Bedford and Mr. KIitchenl both say the Judge
had once paper in his hand, but know nothing of the case to which it
related, but distinctly remember the expression.  Now MIr. Hicks don't
recollect the term of court nor the case, but remembers that Fox's
client, whoever he was, had sworn to t/,, pape'.s, and whlilst one of these
papers was under discussion the Judge had both in his hand, and remarked that one of them must be false.  So it is plain that Mr. Hicks's
testimony, so far from conflicting with that of the other witnesses, only
shows another case in which the Judge was guilty of unb)ecomring language.  He  was not speaking of the same case; and there cani be no
doubt, sir, that this respondent whilst seated upon the bench was wilfully and deliberately guilty of the vilest calumniatiornof Mr. Fox.
After it is proven upon him he can make no excuse, nor offer any palliation. Tie don't even pretend that it was true that Fox was guilty,
but seeks to shown by Mr. Hicks that lie was not guilty of speaking the
words.
And now, sir, I ask in the name of the peopl)e of mya State. in the
name of all they hold dear, in the, name of all fobr which the lp)rotection
of the law has been promised, if such conduct as this.shall be tolerated?if our Circuit Courts, instead of being examiples of virtue, the dispensers
of justice, and the means of protection to the citizen, are to bIe converted into engines of iniquity  and oppressioni?-if our Judges are to
entrench themselves behind their official powvei and heapl such daniinr
414 
MR. KNOTT'S ARGUMENT.
slanders as this upon the members of the bar, and the private citizen,
and be held guiltless?
It was a favorite remark of President Jackson, and one which he
desired might be written in letters of gold upon the walls of our national capitol, that "the slanderer is worse than the murderer;" and I
believe, sir, with Fielding, that vice has no more abject slave,-society
produces no more odious vermin,-nor can the devil receive a guest
more worthy of him, nor possibly more welcome to him, than the slanderer.  No fiend in human shape can inflict a wrong more deadly.  The
ruthless hand of robbery may deprive you of your gold, but industry
will replace it; the incendiary's torch may lay your dwelling in ruins
about you, but upon the ashes of your home the skillful architect will
rear a more splendid edifice; the assassin may plant his thirsty dagger
in your heart,' yet while your loving wife and little ones weep around
your early grave, they can rejoice in the rich heritage of a spotless name
you have left behind you, and as they come year by year to strew around
your tomb affection's offering of vernal flowers, you will look down and
beckon them to the happiness of your bright abode. But who shall
replace the gem of character the slanderer's thievish hand has snatched
from its casket?  Who shall extinguish the embers of scorn and suspicion that ever linger upon the site of ruined hopes destroyed by the
baleful fires of calumny?  Where, oh! where is the hand to close the
gaping wounds the murderer of your reputation makes?  Who would
dry the widow's tear that she might gaze upon a dead husband's blasted
name?  Who will avert the glance of scorn from the homeless orphan,
when the nightshade springs rankly upon the grave of his dishonored
sire?
"The purest treasure mortal times afford
Is spotless reputation; that away,
Man is but gilded loam, or patinted clay."'
Living, you can cherish no jewel more rare; dying, you can leave no
legacy more rich.  Yet, sir, a Judge of the Circuit Court can trample
this priceless pearl beneath his feet, and when appeal is made to the
authorities of the State to tear from him  the ermine he thus disgraces,
he will ask you to say he has been guilty of no wrong! I know not,
sir, whether I should have waited for the slowv interposition of the law
or not; but had you been placed in Mr. Fox's situation, you would have
throttled the tyrant in his seat,-you would have dragged him from the
bench, and choked his slanderous tongue from his lying throat, had he
not instantly retracted the foul aspersion upon your character.
But, sir, I do not ask that this case shall be viewed through the distorting medium of passion. Look at it in the calm, clear light of reason,
law, and justice. Suppose the respondent had inflicted an enormous
fine upon Mr. Fox, or sent him to jail, or shot him  down in the bar
without any provocation, is there a sane man in the Union that would
say he should not be impeached and hurled headlong, into inmfay and
disgrace? WAVell, sir, turn to the seventh section of our bill of rights,
and you will find your character placed side by side with your person
and your property, and declared equally entitled to protection; and the
respondent, when he took upon himself his oath of office, swore  he
would protect it with the same fidelity that your life, liberty, or property should be. Yet, he perpetrates one of the most outrageous slanders
upon the fair fame of a citizen that malignity can invent, and does so,
too, in open court, whilst sitting as the impersonation of justice,
and without a shadow of provocation; and still would have you believe
he is one of most amiable characters, one of the most angelic creatures
in the world! Oh! no! lie never indulges in an expression that can touch
415 
HIGH COURT OF'IMPEACHMENT.
the most exquisite sensitiveness! His temper is as smooth and placid
as a summer lake ere the evening breeze wreaths its tranquil face with
tinv  wavelets! He never calc be excited-"atanoye," perhaps, is the
utmost term that can be applied to hinm! Oh! he is
";As mild a mannered manl as ever scuttled ship or cut a throat,"
-there is no doubt of it.
So far as the eighth article is concerned, sir, inasmuch as the respondent objects to any adjudication upon it in the absence of the
record, I will pass it over, notwithstanding he has, on more than one
occasion during this trial. expressly admitted every fact it contains. In
his answer to this article he has denied the existence of the case, which
made it incumbent upon us to produce tlhe record; but in his address
to the Court he has repeatedly admitted it, and not only that, but detailed every circumstance connected with it. But as the record has been
unfortunately mislaid, I will not ask you to believe the evidence he
has given himself upon the article, but proceed to consider what I
esteem a palpable violation of his oath of office.
The constitution, sir, guaranties to every citizen thie privilege, whenever his liberty is restrained illegally or otherwvise, of having a writ of
habeas corpus issued by some competent authority, and an inq(uiry instituted as to the cause of his confinement, and for the purpose of having
such relief afforded to him as the circumstances of his case might show
him entitled to.
The Judges of the Circuit Courts throughout the State are made by
law, with others, the proper authority for carrying this provision of the
constitution into effect.  They are made the agencies  by which this
beneficent provision may be applied to the protection of the citizen
and whenever a proper state of facts is presented to a Judge of the
Circuit Court showing a necessity for the issuing of a writ of habeas corpus, he is bound under his oath of office to issue it, unless the privilege
has beein suspended by the Legislature, in consequence of invasion or
rebellion. It is a right that every citizen has of demanding this writ,
and that no Circuit Judge has a right to refuse,-for, sir, it is nonsense
to provide in the constitution that this privilege shall never be suspended. if a citizen may be deprived of it by a stubborn or corrupt
Judge. And more, sir, being a duty especially incumbent upon a Judge
of the Circuit Court, if he neglect or refuse to issue a writ of habeas
corpus when properly applied for, he is liable to indictment and impeachment for a misdemeanor in office, in not discharging the duties enjoined upon him by law. I have read to you not only common law
authorities, but the statute in relation to such offenses, and it is unnecessary to do so now.
It i charged, sir, that the respondent, without iany justifiable excuse,
refused to issue a writ of habeas corpus, notwithstanding there was a
petition therefor, proper in every particular, duly presented to him.  I
will retd the petition.  [Mir. Knott here read the petition of Atterbury
for writ of habeas corpus.] The facts connected with this transaction
as detailed by Mir. Phelan are substantially these: Wm. W. Atterbury
was under indictment in Dunklin county  for some offense, but had
never been arrested.  Coming, however, into Stoddard county, David
G. Iticks, without any warrant or authority of law whatever, arrested
him and took him to Dunklin.  Being a comparative stranger in that
county, it was impossible for him to procure bail, but he could do so in
Stoddard county, where he was acquainted.  In this emergenlcy his son,
WAilliam iNB. Atterbury, presented to the respondent the petition for a
writ of habeas corpus that I have just read; but the respondent re
416 
MR. KNOTT'S ARGUMENT.
fused to issue the writ, not because Atterbury was not entitled to it, but
because David G. Hlicks was charged with having taken  Atterbury
without a regular warrant. Ite told Phelan he suspected it was a trap
set for Mr. Hicks in order to get him into a difficulty, and he would
not issue the writ; but seeing upon reflection the difficulty this would
lead him into, he writes upon the petition'the fifth section not com  plied with.'  But will this after-thought relieve him?  What does the
fifth section require? Simply that a copy of the cause of commitment
shall accompany the petition, unless the prisoner has been removed, or
a copy has been requested and refused.
Now, sir, in this instance it is apparent to every member of this Court
that this section of the habeas corpus act could not be complied with.
The petition itself shows there was no warrant or process of any kind, and
alleges that very fact as a reason why the imprisonment was illegal.
Was it not adding insult to injury to require this man to file with his
petition a copy of what he had just sworn had no existence?  If Hlicks
had arrested this man, and held him in custody without a capias, or
warrant of any kind, as was sworn to in the petition, how in the name
of reason could this section have been complied with?  But even had
there been a warrant of any kind by virtue of which Atterbury was
held ini custody, the petitioner was excused from presenting a copy of
it because the prisoner had been removed to Dunklin county, some sixty
or seventy miles distant.
But, sir, seeing that this pitiful quibble will not avail him, he resorts
to another. lie says that before Atterbury's petition was presented, he
had escaped from custody. It was fortunate for him, perhaps, that he
had escaped; but does that excuse the respondent? That was no part
of the reason why he refused the writ, for Atterbury was sixty or seventy
miles away, and he knew nothing of his escape at the time; and, besides,
had his escape been known, there would have been no necessity for pre senting the petition.
But he urges, again, that Atterbury was never in jail. Grant he never
was; does that constitute an excuse for the respondent?  He did not
know when he refused the writ but what he was in a dungeon.  But,
sir, we are not here asking this Court to avenge Atterbury's wrongs, but
we are asking you to maintain the supremacy and authority of the constitution. Wye are demanding that when an officer takes upon himself
an oath to support that constitution, he shall be made to support at
least its most vital provisions,-that he shall not be permitted to
deprive the citizen of one of his most inestimable privileges,-his right
to the writ of habeas corpus.
I will ask the Court to contrast the rigid, technical adherence  to the
very letter of the statute to which the respondent pretends in this instance, with his utter recklessness and disregard for the rights of the
State, exhibited in the outrageous and disgraceful abuse of official
authority of which he was guilty in turning loose upon the community
in which he lives a couple of felons, in direct and open contravention
of law.
In this instance, Atterbury admits he is under indictment in Dunklin
county; but while hlie alleges his imprisonment to be without warrant
or authority of law, he. merely claims the privilege of giving bail, and
urges upon the Judge that he can, if permitted, procure bail in Stoddard county, where he is acquainted. He intimates no desire to escape
the operation of the law, but that whilst he is held to answer for a bailable offense, he merely wants the constitutional right of bail.  Yet,
sir, his petition is spurned, his constitutional rights are disregarded by
the officer whose sworn obligation it is to guard and protect them, because an adjudication of the matter may possibly implicate the special
417 
HIGH COURT OF IMPEACHMENT.
object of his partiality, —Mr. Hicks,-in the false imprisonment of a
citizen. But how different is his conduct in relation to John R. Main
and Charles Russell, two felons recently brought before him and claiming and obtaining their discharge upon a flimsy technicality.
This record, sir, which I presume it is not necessary for me to read
now, as you have already heard it, shows that Main had been arrested,
and examined before Mr. Cravey, a Justice of the Peace of Stoddard
county, on a charge of grand larceny; that Mr. Cravey had found from
the evidence that there was probable cause to believe him guilty, and
in default of bail, had committed him to jail, and delivered him into
the custody of John J. Jackson, Deputy Sheriff of Stoddard county.
These facts appear upon the face of the petition sworn to by Mlain himself.  This record, together with the testimony of Mr. Jackson and Mr.
Tyrell, shows also that while 3lain was in the custody of John J. Jackson, who was preparing to take him to jail, Main preferred his petition
to the respondent for a writ of habeas corpus, setting forth that he was
illegally restrained of his liberty, because the Justice had not taken his
statement according to law. The respondent issued the writ; it was
served upon the Deputy Sheriff, and lie made return that he held the
prisoner by virtue of a warrant of commitment signed by James Cravey, Justice of the Peace, and exhibited a copy of the warrant with his
return. This warrant, sir, which has been read to the Court. clearly
and specifically set forth that,ain wtas held in custody(l to answer to a,
charge of grand larceny. It is plain and unequivocal in its language.
Yet, sir, ithe respondent, with this warrant before him, discharges iMain;
and what for, pray? Because there is no reason to believe he should
be held to answer for a felony? By no means. Because he had reason
to believe him innocent of any crime?  iNot at all. But foul with
crime as he had every reason to believe him, he liberated him on account of an infornmality-and an immaterial one at that, sir-in tlhe
warrant of commitment.  Permit me to read the order dischargingil him:
The State of Missouri)
versus         Charged with Grand Larceny.
John MSain. 
The defendant being brought before me in obedlience to the wvithin nr it, and
there being no charge brought against him, nor Iany evidene produdced against
him, and there being no evidence that he had been legally arrested and tried
before a commnitting magistrate, or before any one having authority to commit
him to the custody of the Jailor of Stoddard county, and the paper herewith
presented as a mittimus not being sufficient in form and substance to authorize
the Jailor of Stoddard county to hold him, the said John Main, in custody, it is
ordered that he be forthwith discharged.
January 7th, 1859.                                   ALBERT JACKSON.
There, sir, the only pretext for discharging this man is a pretended
informality in the warrant of commitment; but suppose there had been
a real insufficiency in the warrant of commnitment, would he have been
justified in discharging him?  Let us recur to the statute'and see thirteenth section, third article, of the habeas corpus act:
When the imprisonment is for a criminal or supposed criminal matter, the
court or magistrate before whom the prisoner shall be brought, under the provisions of this act, shall Hot discharge him for ae,y iSformatity, insie)-ncy, or
icolegularity of the commitment.
Sir, the originators of that section were men of thought, of wisdom,
of observation. They were sensible of the fact that by far the largest
proportion of our committing magistrates are men of but little experience in drafting legal documents, from the fact that they are generally
418 
MR. KNOTT'S ARGUMENT.
selected from among the various industrial avocations of life, and are
precluded by their business engagements from devoting that degree of
time and attention to such matters as is necessary to insure perfect
accuracy. They were aware too, sir, that it might possibly happen that
a magistrate authorized to issue a writ of habeas corpus would abuse that
power, and turn loose upon the State every malefactor brought before
him, simply on account of a technical defect in the mittimus authorizing
his confinement.  To guard against such an evil,-just such an one as
is complained of in this instance,-they enacted that clause I have just
read.  For fear that some Judge might be tempted to claim and exer cise a power so repugnant to reason, and so dangerous to the well-being
of the community, they circumscribed their duties in this respect, as
you see from this statute, in terms so plain that the "'wayfaring man,
though a fool, need not err therein." Yet, sir, vain and inugatory is
this barrier to the improper exercise of power by the Judge, if it is to
be beaten down and trampled under foot with perfect impunity, as has
been done by this Judge in this very case.  lHe may stultify himself,
hlie may plead ignorance; he may tell you as much as he pleases that he
did not know this section was in the statutes, but you will never believe
that a man who had the.ith section so ready at his fingers' ends when
Atterbury was imploring bail, was not aware of the existence of another
section of the same act last January.
I confess, sir, there might be some force in the respondent's plea ofignorance, were it inot for the more infamous case of Rfussell, that occurred about the same time,-indeed, I believe the very same day.
In this case, it appears from the testimony of MIr. Tyrell, Mr.  Jackson, Mr. Crvts, and Mlr. Eaker, who all corroborate each other, that a
man calling hinmself Charles Russell was arrested and taken before
Jonas Eaker, a Justice of the Peace of Stoddard county, on a charge
of passing counterfeit money.  iMr. Eaker examined the witnesses, and
finding there was probable cause to believe him guilty, held him to bail
in the sum of three hundred dollars, and allowed him until ten o'clock
the next morniing to procure securities.  William F. Cryts being the
Constable of the township, Russell was placed in his custody as the
proper ministerial officer of the Justice's Court, for safe keeping until
the designated hour next morning.  But before that hour arrived, the.
respondent issued a writ of habeas corpus for the body of Russell, had
him brought before him, and discharged.               -
3Mr. Tyrell, when he presented Russell's petition, explained to the
respondent the circumstances of his imprisonment; the petition itself
showed the circumstances of arrest under a proper warrant, examination before a court of competent jurisdiction, and the order of that
court placing him in the custody of the Constable.  Yet, because the
Constable states in his return that he held him  by virtue ot a verbal
order of Jonas Eaker, under all these circumstances, he immediately
discharges him. Cryts held Russell legally in custody, and all the circumstances showed it.  In proof, I will call your attention to a case in
7 East's T. Reports, directly in point:
It never could be doubted but that a magistrate might by parol order an
of'iender to be detained in custody until he could make out his warrant of comminitmnent; and this court were in the constant habit of directing commitmeints,
v erbally, which were afterwards recorded.-Still irs. Walls, p. 536.t
-Now, sir, what was this Judge's duty under the law, and the facts
shown by the petition itself? No man, sir, who has the least regard for
his reputation for common sense, will pretend to say that he had anything to do but send the prisoner back to Justice Faker, to give bail in
the amount fixed.  But even granting, sir, that it was necessary for
419 
HIGH CO'URT OF IMPEACHMENT.
Mr. Crivts to have had in his possession the examinations and warrant
to justify him in holding the prisoner, we learn from the testimony
of MIr. Cryts, Mr. Tyrell, and Mr. Jackson, that before the Judge had
discharged Russell, Mr. Cryts went and procured these papers, and
brought them and laid them down upon the table before the Judge.
But what does the Judge do then?  Does he manifest the slightest
care or regard for the welfare of that community, or the majesty of the
criminal code?  Does he exhibit that strict impratiality that should
ever characterize a Circuit Judge?  Granting that the petition itself
did not put him fully in possession of the fact that the prisoner was in
custody for a felony, what does he do when the papers are presented to
him to satisfy him of that fact? lie does not even deign to look at
them, except to ascertain what they are; but with a sneer tells Mr.
Crvts "hlie had better be careful or he would contradict his return;"
and went on and discharged the prisoner, with full evidence of his guilt
and the legality of his imprisonment lying there upon the table before
him.  No wonder he quibbled so upon the introduction of the record
in this case, for he was sensible that it would fix upon him the most
detestable guilt. No wonder he kept the original in his possession, and
refused to produce it until we had established clearly our right to introduce a copy. But I want to remind the Court of an admission made
by the respondent in this Court, that affords a key to this whole matter.
When John J. Jackson was on the stand, the respondent, in cross-examining, asked him whether, when Cryts was elected, Isaac Brand was
not his opponent for the office of Constable; if Mr. Brand wasn't declared elected, and if Cryts didn't contest the election successfully; and
if Mr. Brand wasn't Jonas Eaker's son-in-law. I thought this rigmairole
had proceeded far enough, and objected to its being carried any further,
when the respondent replied to my objection, that hlie wanted to show
the relationship between Eaker and Brand, because, when Russell was
brought before him, and Cryts stated he merely held him by virtue of a
verbal order of Baker's, he thought it was a scheme concocted by Eaker
and Brand to get Cryts into a difficulty, by getting him to contradict
his return to the writ of habeas corpus; and hence, it was to save Billy
Cryts (knowing him to be young and inexperienced) from being entrapped by Eaker and Brand, that he refused to examine the papers
that Cryts brought and laid before him. If he dare deny making this
statement. the reporter's notes will show it.  I arose a,t the time to expose the dilemma in which it placed him, but he withdrew the question.
But see what a defense, what an excuse this is for a learned Judge.  A
felon is brought before him. Evidence is exhibited conclusively showing that he has been tried and found guilty by a magistrate of competent jurisdiction of one of the most heinous crimes known to the calendar. The prisoner even admits these facts in his petition. Yet the law
that declares him legally in custody must be blindly overridden, the
safety of community that required his punishment nmu.t be jeopardized,
and a villain turned loose to curse the country  by a,'epetition of
his crimes, all to save the reputation of Billy Cryts from the blighting mildew,-nay, the faintest breath of suspicion!  But who asked
him to violate his oath of office, to trample under his feet the laws
of the land and the rights of an entire community, merely for Mr.
Cryts's benefit? Who asked him to assume a guardianship over Mr.
Cryts at such enormous sacrifices?  Mr. Cryts did not I am sure.  This
Court is satisfied that he is abundantly able to take care of himself,
and that he will go through life respectable and respected, notwith standing all the diabolical machinations of Jonas Eaker and Isaac Brand
which the wonderfully magnifying properties of the respondent's imagin ationi have enabled him to discover.
420 
MR. KNOTT'S ARGUMENT.
Now, sir, there is not one particle of sincerity, not one syllable of
truth in this flimsv excuse; but it shows one thing,-it shows that this
respondent did not like Eaker. Hle perhaps thought of the time he
wrongfully and corruptly imprisoned him for daring to assert his privileges as a freeman; or perhaps he thought of the time Eaker presented
him to the grand jury for oppression in office, when he violated his oath
and the law, and degraded his position by going to that grand jury privately and telling them he was above the law when mantled in his official robes.  I think it likely he thought of all these things, and said in
his heart,'I'll show this community that although they have elected
Eaker Judge of the County Court, and Justice of the Peace, hlie is a
poor illiterate fool, that doesn't know how to keep a prisoner when he
gets him. I've got a good chance to disgrace him, and I'll do it, if Cryts
has presented me with conclusive evidence that this felon is justly, legally, and properly in custody.'
I will not now consume the time of the Court by reading the numerous cases, both in England and in this country, in which magistrates
have been heldguilty of misdemeanor in office for taking inadequate bail,
in order to show how much graver the offense would be to send adrift
upon the community without any bail at all every villain that may see
proper to ask to be discharged under a writ of habeas corpus; for if the
circumstances of these cases do not themselves suggest sufficient reasons
for the condemnation of a Judge that would be guilty of them, I despair of any power of mine to represent them in the light best calculated
to exhibit the hideous moral turpitude and monstrous official corruption they involve. If this respondent shall be held worthy still to
occupy a high place in the judiciary,-shall still be permitted to hold
the sceptre of the law, after such conduct as the evidence in relation to
these two cases shows him guilty of,-I am confident that every citizen
who is conversant with the facts attending these cases will shudder when
he sees what cobwebs manacle the hands of crime,-when he sees that
murder may drink the blood of his victim in the streets; that the incendiary may bask in the blaze of his victim's dwelling, and gloat over
the charred and blackened bones of his wife andl little ones; and that
all the shackles the law can impose upon him are but as gossamer, to be
swept away by the breath of a Circuit Judge.
The hour of adjQournmient having arrived, Mr. Knott rested his argument; and on motion of SENATOR OPARSONS, the Court then adjourned.
421 
EHIGII COURT OF IMPEACHMENT.
FIFTEENTH DAY.
WEDNXESDAY, June 22, 1859.
The Court met pursuant to adjournment, and was opened by proclamation.
The managers and respondent attended.
Mr. KNOTT resumed his argument as follows:
I am aware, Mir. President, that from the great number of charges
alleged in the articles of impeachment under consideration, and the
almost infinite variety of facts and circumstances adduced in evidence
to establish the respondent's guilt of each one of them, the remarks I
had the honor of submitting to the Court on yesterday, as well as such
as I deem it incumbent upon me still to offer, must necessarily appear,
as they really are, illy digested, hurried, and imperfect.  The field is too
extensive to be thoroughly explored by a single intellect in one excursion, without wearying in the task.
The great picture of judicial crime presented in this case does not
consist of a single master-stroke of guilt; but is made up of a series of
individual instances of official corruption, each of which is possessed of
features sufficiently revolting, not merely to afford ample employment
to an intellect superior to my own, but to insure the heart that conceived it an immortality in the annals of human depravity.
I hope. therefore, it has not been and will not be expected that I
should linger upon each particular offense of which we have shown the
respondent guilty, until I shall have adverted to every single fact that
can bear upon the question of his guilt, —until I shall have dissected his
heart, and exhibited to the sickened and disgusted gaze of the Court
every black and rotten recess from which corruption could have crept.
I could not so trespass upon the patience of this honorable body, which
has already been so fully exercised, even had I the physical and mental
capacity to do so. I must rely upon your own appreciation of the revolting nature of crimes, which under the most auspicious circumstances
I would be unable properly to discuss, and your ability to make a proper application of the numerous facts proving conclusively the perpetraion of such crimes by the respondent. And, sir, while you make this
application of the facts exhibited in the evidence to the question of the
respondent's guilt, I will ask you to keep in view the fact, that notwithstanding we have frequently proved facts and circumstances showing
beyond any possible doubt the unmistakable motive of revenge under lying the respondent's repeated acts of gross misconduct i office, the
law by no means requires us to show the malicious intent, the unlawful
design that actuated the perpetration of any offense charged in these
articles. The rule of law by which you are to be governed in this par ticular is, that the commission of an unlawful act by a sane man carries
with it a conclusive presumption that he did the act with malicious and
unlawful intent. I will read you 1 Greenleaf's Evidence:
SEFCTIO\  18. "Every sane man is conclusively presumed to contemplate the
probable coansequences of his own act."
So, if the consequences of a Judge's conduct will probably operate
oppressively, the conclusive presumption of law is that he willfully intended to oppress. Again, sir, I will read from the same volume:
422 
MR. KNOTT S ARGUMENT.
SECTION 39. " As men seldom do unlawful acts with innocent intentions, the law
presumes every act unlawful in itself to be criminally intended, until the contrary appear; thus on a charge of murder malice is presumed  trom the fact of
killing unaccompanied with circumstances of extenuation, and the buirden of
cis.provinq theI malice is throtewn tpon the accused."
So, sir, when we establish that the respondent unlawfully imprisoned
Eaker, sent cases to remote and inconvenient counties when there ex sted no earthly necessity for it, outraged the characters of Phelan and
Fox in open court, refused a writ of habeas corpus to Atterbury, or violated the statutes of the State in turning loose upon the people of Stoddard county a thief and a counterfeiter, the law under which you have
sworn to try this case requires you to presume that he did these things
with a criminal intent, until he himself shows to the contrary. " The
burden of disproving the malice is thrown upon the accused;" and if he
folds his hands and makes no effort to rid himself of the consequences
of this legal presumption, he cannot expect this Court to close their
eyes upon the law and reason and pronounce him innocent, when all
the world besides will say hlie is guilty.
I need not remark that he has made" no effort to show any other
than the unlawful, malicious, criminal motive, which the law attaches
to his conduct, and of which he must divest it or be held guilty.
Instead of doing so, I say boldly he has not dealt fairly with the evidence of a single witness. Hle has interpolated, misstated, and distorted
it in every manner of which he was capable; while he never dared to
allude to the overwhelming array of authorities my learned colleague
produced  against him in making his able argument  in this case.
Oh! no! he expects to override law, evidence, common sense,
and justice, with his toc,eric# ]osition!   tle has been elected, forsooth,
and that has placed him upon a pinnacle inaccessible to law or justice,
from which hlie can look down with serene indifference upon all created
things! I Yes, sir, he has attempted fiequently to frighten this Senate
out of their propriety by parading his immense popiedality before their
eyes! It would seem, sir, from his vaunting, that he could take a
stand in the centre of the Fifteenth  Judicial Circuit, and sing as
Selkirk did:
"I am monarch of all I survey;
My right there is none to displute."
I will not undertake to demonstrate that there is as much modesty
as truth in this gratuitous self-advertisement of the gentleman's standing
at home, but I will say he places a very flattering estimate upon this
Court.  According to his view, you will pronounce him " tot qyiiity" for
fear of offending some of those whonm  he would have you believe prostrate themselves in servile obeisance beneath his autocratic scepter. lHe
says,'if you convict me, you'll lose votes in the Fifteenth Judicial Circuit.'
How complimented and how grateful that intelligent and hi.h-minded
people will feel to the respondent, when they learn he has asserted such
a dictatorial sway over them! But, sir, as it seems gratifying to the respondent to entertain this vain illusion of personal popularity, I will not
be so cruel as to disturb it. I will concede to him, to save his feelings,
that every man in the Fifteenth Judicial Circuit holds him in the highest
possible esteem, except one.  Yet, if he corruptly and maliciously use
the authority of his office to persecute that man in a single instance, he
is as amenable at this bar as if ninety-nine out of every hundred were
the victims of his malice.  And, sir, I care not what may be his position
in society, even if he "dress in purple and fine linen." and hold subject
to his will the very thoughts of thousands; yet, if he has closed the gates
of justice upon one single man, though clothed in the rags of extremest
423 
HIGHI COURT OF IMPEACHMENT.
poverty, his influence will not save him from being dismissed in disgrace
from the distinguished place he has dishonored.
But, sir, I must resume the examination of the charges in the order in
which they are preferred; and in doing so, will invite the attention of
the Court to a consideration of the eleventh article.
Mfr. Tyrell and MIr. Kitchen tell you, that at the November term, 1858,
of the Stoddard Circuit Court, the respondent, in his public charge to
the grand jury, told them he had understood that a citizen of that county
had gone to Jefferson City ostensibly on business for the county, but in
reality upon his own business; that he had procured a warrant upon the
County Treasury for a hundred and seventy-seven dollars, for his pretended services; that they must investigate these facts, and, if true,
prefer an indictment against the party, for he was as guilty as if he had
stolen that much money; that the facts constituted the crime of obtaining money under false pretenses; and that they could ascertain who the
man was to whom he alluded, by inquiring of the County Treasurer who
had presented a warrant for one hundred and seventy-seven dollars.
Mr. Tyrell tells you the Judge, in this charge. so accurately described a
transaction of Mr. Kitchen's, that he knew at the time he referred to
MIr. Kitchen.  Mr. Kitchen tells you that the County Court, desiring to
dispose of the swamp lands belonging to that county, employed him to
visit Jefferson City for the purpose of procuring a certified list of such
lands; that in order to save his own business from suffering for want
of attention during his absence, he employed Mr. Phelan to attend to
it, before he would make the contract with the County Court; and to
pay Mir. Phelan, agreed to give him half he should receive from the
county for obtaining the lists; that he proceeded to this city at his own
expense, and, in order to get the lists in time, he paid out over sixty
dollars of his own money for the hire of an extra Clerk for the Secretary
of State; that upon his return, the County Court, to reimburse him for
his expenses, and to pay him for his time and trouble, drew a warrant
in his favor for one hundred and seventv-seven dollars, or, rather, in his
and Phelan's favor, for he shared half in it for attending to Mr. Kitchen's
business while he was gone. tlie also tells you that while the Judge was
giving this charge to the grand jury, several spoke to him to the effect
that  the Judge was after him," showing clearly that it was generally
understood he was speaking of him.  And more, sir; Kitchen and Tyrell
both tell you he said the man to whom he alluded was a lawyer, indicating him not only by the transaction, but by his profession.
Such, sir, are the facts; and to disprove them, the respondent has
offered you no scintilla of evidence; on the contrary, so far from there
being the slightest palliation for this unheard-of conduct, it is in evidence that for months he had harbored toward this victim of his persecution the most malignant feelings of revenge; that he had taken every
opportunity to oppress him; that he taxed his ingenuity for obstacles
to throw in the way of his success. And besides, sir, you lmve not forgotten that when this same victim of his malice was the other day confined to a bed of sickness, and the opinion of his physician was that his
removal from his room would endanger his life, when the proposition
was made to take his testimony at his bedside, this immaculate respondent, this embodiment of mercy, this pure minister of pity, who melts at
every sight of sorrow, or sound of woe,-flushed with anger, with every
feature gleaming with passion, said, "no, he shall come here if it costs
him his life!" The law gave him "the pound of flesh," and hlie exacted
it with an avidity that would have shamed Shylock himself.
Sir, had I been the victim of the wrongs that have been inflicted upon
that man; had I been hunted down with an insatiate, tireless hate, for
months, as he had been; had I been singled out and foully branded
424 
MR. KNOTT'S ARGUMENT.
with a felony, as he had been, in the presence of hundreds, and by the
very court who holds the guardianship of my fair fame, I would have
come here at the ris/k of my l/i!  Worn down by disease and anguish, I
would have dragged my emaciated body to this bar, and with the last
feeble gasp for life, poured into my country's ear the story of my wrongs,
and demanded vengeance upon the tyrant's head!
I need not tell this Court, that of all the rights the human being can
hold dear and sacred, that of having his reputation kept pure and spotless is most important.  Man is preeminently a social being.  He was
never created to live independent of the good opinion, respect, and
friendship of his fellow creatures. All his hopes, all his aspirations, all
his acts are intimately and inseparably associated with the esteem of
others.  Whatever may be his disposition, inclinations, or aspirations;
whatever may be his sphere or avocation in life, the approbation of his
fellows is his guiding star through time. Upon that star, through the
clash, the jars, the turmoil of life's great battle, his eye is fixed; and
when that eye glazes beneath the icy touch of death, it turns still to
catch its last lingering beams.
On some fond breast the parting soul relies;
Some pious drops the closing eye requires."
For reputation, the hero treads the stormy path of war and toil; the
poet tunes his sweet-toned lyre; the scholar trims the midnight lamp;
the peasant toils through summer's heat and winter's cold;-and to pur chase reputation, the miser "heaps the shining ore."  So rich, so price less is this gem, that statesmen have placed it in the same casket with
life and liberty,-have made its protection a special subject for colnstitutional enactment. Yet, sir, I appeal to you in the name of virtue, and
of justice; in the name of every right held sacred by the human heart;
in the name of our outraged laws and sullied institutions, to contemplate
the appalling picture of judicial crime presented in this case! 1 ask
you to behold a Judge of your Circuit Court, under the solemnities of
his oath of office, perverting the duties of his post, and making his official
power an engine of iniquity and oppression; breathing upon the character of an unoffending citizen the blighting mildew of a damning slander
that will poison his happiness through life, go with him to a dishonored
grave, and cling to his wife and children long after he has mouldered
into dust.  I ask you to look at this Judge deliberately robbing a harmless, defenseless man of this invaluable gift, more priceless far than gold
or diamonds; stealing from him the precious talisman that secures the
only joys that linger about his path through life, and tell me, tell your
constituents, he is guilty of no crime!
The law very wisely provides that the deliberations of grand juries
shall not only be had secretly, but forever kept secret. It makes this
beneficent provision out of tenderness to the character of the citizen;
to save his reputation from unjust aspersion, injurious remarlk,or even
suspicion, until at least twelve men, acting under oath, upon sworn testimony, shall say there is probable cause to believe him guilty of a
crime.
It is the duty of the Judge to instruct them upon the law in the abstract; to tell them what facts constitute the various offenses of which
they are to inquire; but not to single out a citizen, and forestall the
action of the grand jury by an expression of his own opinion, or make
him an object of public suspicion by even hinting at his guilt, until the
constitutional authority-the grand jury-says he should be put upon
his trial. The grand jury, in their retirement, take up the facts detailed
by witnesses legally sworn; and if, after applying these facts to the law
they have received from the court, they find any party innocent, there
425 
HIGH COURT OF IMPEACHIMENT.
is no harm done. They are under an oath never to divulge the fact;
no one else knows that his conduct was ever under investigation; and
so he goes forth with his character unsullied by even the breath of public
suspicion, pure and spotless.
But, sir, permit ia Judge to single out any man he may see proper,
whether charged with a crime or not, and, under pretext of charging the
grand jury, perpetrate any slander upon him that his fiendish malice
may dictate, and whose reputation will be safe? Having a grudge against
any citizen, he may, from the bench, in the presence of hundreds, describe him by his avocation, residence, age, dress, and personal appearance, so exactly that all present can easily distinguish whom he means;
and then inform the grand jury he has heard that such a person has
committed a burglary, larceny, forgery, arson, or any other infamous
crime.  It avails nothing, sir, that the grand jury find the base insinuation utterly without foundation. The concourse present think the Judge
would not make such a charge without just grounds; so it is taken up,
discussed, and reiterated and rehashed with as many shades and variations as there are auditors present, accumulating horrible details, until
at last it becomes a fixed, proven fact, in the estimation of a large portion
of community.  The poor man, though innocent as the unconscious babe,
is ruined. Like the beauteous flower over which the deadly sirocco has
poured its poisonous fires, his reputation, blasted by the baleful breath
of damning slander, withers, droops, and dies.  SWeeping pity will water
it with her tears in vain; the tender plant is dead; and all the showers
that can be distilled upon it cannot awake it again to life and beauty.
Vengeance is glutted; and malice, mantled in judicial robes, smiles upon
the desolation it has sent upon a peaceful, unoffending, happy family.
"' Back-wounding calumny the wahitest virtue strikes."  So you, sir, may
be a victim, too.
I will attempt no further to portray the terrible consequences of permlitting such monstrous iniquity to go unrestrained, for I know it is far
beyond my feeble powers. I have no language adequate to the task.
But I thank God I am addressing a Court composed of pure-minded,
upright men, who will appreciate and punish the loathsome, disgusting
and dangerous wrong fixed indelibly upon the respondent in this instance.
I have only known these crimnes historically. I have never seen them
in court. It has been my good fortune, during the very limited time I
have been at the bar, to appear before a gentleman distinguished by
every virtue that can ennoble man. Honest, learned, and just, he inscribed his name in imperishable characters upon his country's brightest
page; and has at length retired, after a long career of usefulness, respected, honored, and beloved by all who know him. I repeat, sir, I
have only known such offenses as are proven upon this respondent as
matters of history, and I would to God it had never been our lot to turn
this dark page of Mlissouri's annals.  I would it might nev be blotted
out forever; that the Leathean waters of eternal oblivion might hide
the fact that a Missouri Judge was guilty of such foul and damning
crimes!
I have already shown to the Court that, both at common law and by
the statute of this State, a Judge, neglecting or refusing to discharge
any duty incumbent upon him by law, is guilty of a misdemeanor in
office; and that for misdemeanors in office, particularly statutable mis demeanors, he is liable to impeachment, and should be dismissed from
ofice. I have also shown you that it is the duty of a Judge, when he
has reason to believe, from his own knowledge, or legal information from
others, that the Clerk of his court has been guilty of any misdemeanor
in office, to give information of such misdemeanor to the Attorney-Gen
426 
MR. KNOTT'S ARGUMENT.
eral. and suspend the Clerk from office, and appoint a temporary Clerk
in his stead. I furthermore showed you, by the very same statute, that
any willful neglect of the Clerk to discharge any of the duties of his
office should be deemed a misdemeanor in office.
Now, sirl I propose to show you from the testimony that the respond ent was willfully guilty of a cri minal neglect of duty in refusing to sus pend the Clerk of the Butler Circuit Court, and appoint a temporary
Clerk in his place, when he knew, not only from his own knowledge, but
from universal outcry, that the Clerk was drunk and neglecting every
duty of his office; and that he did this as an act of kindness, a special
mark of favor to the Clerk. to save him from punishment and disgrace.
IMr. Phelan, Mr. Bedford, Mr. Ruff, and Mr. Vandiver and Mr. Scott
also, I believe: tell you that at the INovember term, 1857, of the Butler
Circuit Couit, on the first day the Clerk was in court and attending to
his duties.  The grand jury was sworn and empanneled, and perhaps a
case tried. (On the second day, however, they tell you the Clerk was
absent, and reported drunk,- too drunk to attend to business.  Mr. Phelan and Mtr. Bedotrd tell you thaLt the lawyers requested the Judge to
appoint another Clerk, that the business of the court might proceed;
and so solc itous was Mr. Phelan that he offered to keep the minutes
himself.  The Judge refused to permit this, unless hlie would abandon
all his cases at that terni. This Mr. Phelan could by no means afford to
do, but proposed to procure a competent man. He did so. He brought
Donaldson WValker into court, but the Judge refused to allow him to do
anything. unless requested by 3iM  Blount, the Clerk.  Mr. Phelan then
went to Blount's house, where he found him in a condition of almost
total inebriety, and he and Mrs. Blount held him up in bed while he
signed a written request that Donaldson Walker should be installed as
his deputy.  lThis document was presented to the Judge, but he still refused to alpoint even a deputy, or, rather, to approve the appointment
of one by Blount.  On the contrary, he takes all the papers pertaining
to cases answ(ierable and triable at that term, rolls them up in a newspaper, places them under his arm:  and, when Bedford and Phelan apply
to see some of them, they are insulting,lyv told that some of the papers had
been purloined. and he was afraid to trust them. He finally locked them
up in the Clerk's office, and gave the key to Mir. Dennis; and that evening had the grand jury called into court and peremptorily discharged,
although, as Mir. Buff; who was a member of that grand jury, tells you,
they had very important business oni hands, and objected to being discharged.  MIr. Bedford tells you the same thing, and that this was upon
the second day of court, while there was a whole week in which to hold
the term. And Mrt. Phelan tells you that the respondent afterwards
told him that the reason he didn't suspend Blount, or appoint another
Clerk, was that ".Blount was a clever fellow."
lWhen all these things are proven plainly and beyond any-kind of
question by the witnesses against him, and more than corroborated by
his own witness Dennis, he finally comes out in his address yesterday
and whiningly asks to be excused because he didn't know Blount was
die,unk! Ah! sir, that won't do.  He knew he was not in court attending to the duties of his office, and do you find him inquiring the reason?
I suppose it would be natural that he should do so when he missed him
at his desk, and Scott, Ruf, Vandiver, Phelan, Dennis, and Bedford, all
tell us it was a notorious fact that he was drunk.  Phelan says he told the
Judge himself that Blount wais drunk, and that he heard a number of
others tell him the same thing. But more than that, sir, the other day
while Mir. Scott was under examination, when I asked him if Blount
was drunk, thlie respondent admitted that he knew he was drunk. Look
at the printed report of Scott's testimony, and if the reporter has kept
42T 
IHIGH COURT OF IMPEACHMENT.
the remark of the respondent as well as the question and answer of the
witness, you will find that open admission of the respondent as I have
stated it. It is not my duty to reconcile these two statements. He
may do it at his leisure after the termination of the trial if he sees
proper.
The respondent labored hard to show that Blount never signed
this appointment of Donaldson G. Walker. But I'll venture to say,
when you take into consideration the fact that Blount was so drunk
when he signed it that he had to be held up by his wife and Phelan,
you will say his signature to it is in the very same handwriting as the
other papers exhibited to you, although several witnesses have sworn
that they don't look alike.
But, sir, I appeal to you in the name of common reason and candor,
do you believe that Phelan would go to Blount's house, forge Blount's
name to a paper that was to be filed in Blount's own office, and that
was designed for the very purpose of placing another man in that office,that he would do all this in the open face of day and openly avow it as
his own act? Sir, you are bound to believe either that Phelan was utterly demented, that he was entirely deprived of every spark of reason,
or you must believe his.testimony is true, and that Blount signed that
paper. In favor of the former hypothesis there is not a single fact before you; on the contrary he details his testimony with the candor and
honesty of a perfect gentleman, and indicates a far more than ordinary
degree of intelligence. No man ever saw evidence given with more
ease, candor, sincerity, consistency, and intelligence than Phelan detailed
his; and besides here were a hundred of his neighbors who had known
himr for years; why didn't the respondent introduce them to attack his
evidence? But alas! for the poor, weak old man! The Court remembers
that when M~r. Phelan was upon the stand, the respondent himself said
he knew him to be an honorable, highminded gentleman.   The fact is
clear, sir; it cannot be disputed. Blount appointed Walker deputy, as
this paper which the respondent himself offered in evidence shows, and
he refused to ratify the appointment. And why? lie astonished you
yesterday by saying that the reason he did not appoint another Clerk
was, the papers belonging to the office were in such a condition, scattered
around and lost, that no other Clerk could have done anything had one
been appointed. Why, in the name of sense, what sort of a reason is
this, sir?  The Judge is applied to to suspend a Clerk for misdemeanor
in not attending to his duty, and he says'oh! it's no use, he has been
guilty of so many misdemeanors it won't do any good to turn him out
of office!'  Whose duty is it, sir, to keep the papers in order?  The
Clerk's. Suppose the Clerk fails to do so, what is the consequence?  He
is guilty of a misdemeanor in office, and it is the Judge's duty to prefer
charges against him, and suspend him from office until they are determined.
But this Clerk permits the papers belonging to his offe to become
scattered around and lost during vacation; gets drunk during court; absents himself from the court; neglects every duty belonging to his office;
clogs every wheel of business-suits must be continued at any sacrifice,
the grand jury discharged and the court adjourned in the commencement of the term, and still he must not be indicted or suspended from
office because he is a clever fellow!
It is no difference, sir, how many distressed suitors eagerly throng the
vestibule of the court, in the vain hope of warding off impending ruin
by a speedy determination of their legal rights, let them wait. Let
squalid poverty make its cheerless nest upon their hearthstones; let the
fruits of honest toil they have for years slowly accumulated to gladden
the dreary evening of life be snatched from them by the remorseless
428
I 
MR. KNOTT'S ARGUMIENT.
hand of debt; let ruin and misery invade the joyous precincts of their
happy homes, and make their horrid dens in the bright abodes of do mestic bliss-Blount is a clever fjellow, and must not be suspended from
office! Let the poor prisoner rot amid the filth and vermin of the
loathsome dungeon; let him vainly rave, as the jail fever consumes his
burning brain, that the constitution promises him " a speedy trial, with out sale, denial, or delay;" let him die; let his bones bleach iorgotten on
the slimy floor of the noisome prison vault-Bloue,t is a clever fellow, and
it would be a pity to suspend him from office!  Throw wide the gates
of vice; let loose upon the country all the hellish brood of crime; let
arson light up the midnight sky with the lurid flames of burning dwell ings; let the warm life-blood of the unoffending citizen slake the assas sin's fiendish thirst; let murder's bloody dagger gleam in the sunbeams
of nioonday; let prowling rapine desolate the bright habitations of inno cence and peace-the grand jury shall be discharged, the court shall be
adjourned, crime shall go unrestrained, because Jacob C Blount is a clever
fellow, and it would be a pity to suspend him from office for a misde meanor!
Perhaps John R. M,ain and Charles Russell, the two felons he turned
loose in open violatlion of the statutes of the State, were clever fellows!
Perhaps he thought Mr. Hicks a cever fellow when he quashed an in dictment against him ifor an assault with intent to kill!  Perhaps it was
because Col. Bartlett was a clever fellozv that he usurped the province of
the jury, denied them the right of finding a verdict according to the
law and the evidence, and finally procured a none pi-roseqi for him.  But
there is one thing certain, —he didn't think Mr. Kitchen a clever fellow
when he sheltered himself behind the duties of his office to make a
mean, cowardly attack upon his character, or when he attempted to
hound the grand jury upon him for having made a fair and honorable
contract with the County Court of his county.
Is there no partiality, no wrong, no corruption in all this?  Oh! no,
certainly not. Donl't you know Blount is a clever fellow! And now, sir,
that this word corruption occurs to my mind, let us see what it means
in law. Mir. Bouvier defines it thus in his Law Dictionary: " Corruptionan act done with intent to give some advantage inconsistent with official
duty, or the rights of others." So, sir, when the respondent triumphantly tells you to prove the corruption in his demeanor, tell him his refusing to suspend a drunken Clerk, who was palpably guilty of misdeineanors in office, and to appoint a temporary Clerk was inconsistent
with his sworn duty; inconsistent with the rights of parties; inconsistent with the rights of the bar; inconsistent with the rights of the whole
community, and intended to give an advantage to the Clerk,-intended
to save him from punishment and disgrace because he was a clever fellow, and hence was under the law corrept.
But, sir, we not only find the respondent guilty of this instance of
partiality,-this instance of corruption,-in directly conferring En advantage inconsistent with his official duty and the rights of others, but prove
as charged in the very next article that he is guilty of similar misconduct at a different place and under entirely different circumstances.
You are told by Mr. Ringer that he had undertaken to build a court
house in Bloomfield, in pursuance of a contriact he had made with Mr.
Kitchen, who was commissioner for Stoddard county; that in October,
1857, the respondent came to him, took him to one side, and asked him
if he had any county warrants for building the court house; hlie told
the respondent he had not, but that Kitchen had; the respondent then
advised him to get the warrants, sell them, put the money in his pockets,
and then sue Kitchen and assured him he could recover, because Judge
429 
HIGH COURT OF IMPEACHMENT.
Eaker's court was not a legal court, and Kitchen was individually liable
upon the contract.
And how does he seek to evade this plain, unequivocal testimony of
Air. Ringer?  He feels the force of it; he knows it establishes against
him a crime for which he should instantly be hurled from office; and how
does he seek to avoid its just and inevitable consequences? By showing
any inconsistency in it? By showing or attempting to show by any of Mr,
Ringer's numerous and respectable acquaintances here that he is unworthy of belief?  No! but by attempting to prove that he was not in
Stoddard county during the month of October, ].57.  I will not say,
sir, how well he has succeeded in proving a negative in this particular,
nor will I pretend to say he was in Stoddard county during that month,perhaps he wavs not; but I do say it by no means follows, that because
Mlr. Ringer may have mistaken the latter part of September or the first
of November for a portion of October, in fixing the time of this interview, the interview never occurred.  Nor will any member of this Court
hold him less guiltless for this flimsy plea,-tlihis slight mistake in
point of time, which may or may not be so.
Here, sir, he is exhibited, by the evidence, descending from the bench,
and notwithstanding it is his peculiar province, his sworn duty under
the law, to dispense even-handed justice to all,-inotwithstanding there is
a statute expressly forbidding his actilg t'as counseliloi ii ainy case,-privately advising one citizen to bring a sui t a    niigest another, and even assuring him he will recover judginenit.
But who is this other?  Why has he such a lively solicitude for the
welfare of' Mir. Rinuger? Why does he take such a deep and abiding interest in the private affairs of another, that propiiety, justice, official
obligation, and plain statute law all cannot repriess?  Is it because he is
overflowing with the  milk of human kidness?o s'iis conduct
well up like the sparkling waters of the civstal flouiti.11 fromr  a pure
heart, full of tender sympathy, kind emotion, and geiieou  s impulses?
Or is it the venom distilled beneath the aLddei s tongu,e, the poison gall
oozing firom a mean, revengeful soul, surc-.harecl with hate and malice?
MAIr. Kitchen is the man against whom he wishes to incite a vexatious
suit.  It is Kitchen from whom he would snatch the hard earnings of
long years of honest toil to pay the county's debts,-so you may guess
the kind of spirit that dictated his gratuitous advice to Ringer.  But
wherefore should Kitchen pay this debt mnore than.Jackso?  lHe had
been guilty of no wrong.  lie had been guilty of no bad faith. Why
should le pay the county's debt?  Ah! sir, it seems to me that human
depravity can get no lower,-that man can never approximate nearer the
nature of the arch enemy of Heaven and earth,-than has been done in
this instance.  The respondent sees the man against Nlwhom he has long
entertained the deadliest hate selected for his probity and capacity to
superintend the erection of apublic building.  -le behol(ls him discharge
the duties incumbent upon him with an honest fidlelity that secures the
approbation of all.  The prosperity of the unoftfending object of his
malice beconmes an eye-sore to him; galls him; goads him on to fury..
Envy takes possession of his entire soul.  He thinks,-he dreams of
vengeance. IHe pants for the destruction of his enemy's happiness;
he longs to see his wife and children stripped of the appliances of comfort and elegance that industry, frugality, and hLonesty have accumulated
around them; hlie craves to see them exiled from the home endeared to
them by all the ties of nativity, and the sweetest reminiscences of affection; he wildly prays to see them the beg,gared pensioners upon a
heartless world's precarious sympathy.  To bring all this woe upon the
victim of his envious rage, he seeks to crush him  with the overwhelming weight of a public liability he is under no mroral obligation to dis
430 
MR. KNOTT S ARGUMENT.
charge.  He seeks out Ringer.  IHe endeavors to influence him to institute proceedings against Kitchen. lIe assures him he can recover. lie
gives his reasons why. Already his eye glitters with the strange, wild
light of exulting vengeance, as he imagines the success of his malicious
schemes. But Ringer, like an honestnman, spurns the fiendish counsel.
He knows that Kitchen is under no obligation to pay the debt of a
wealthy county, even if some lame provision of law does make him
personally liable, and he scorns such mean advantages.  Well was it
perhaps for Kitchen that he did, for although he may not have been
liable personally, there is no calculating the annoyance and perplexity
to which he might have been subjected by a vexatious suit.
But, sir, this Judge can commence at the very inception of a case; he
can advise how the suit should be brought, how it shall be managed,
and what judgment will be rendered; the opinions he expresses in
private he wiN make good upon the bench; he will effectually destroy
public confidence in the purity and efficacy of the judiciary; he will
make the temple of justice a huckster's stall for retailing favors to litigants; and when brought before the bar of his country to answer to the
law he has outragted, and meet the justice he has trampled under his
feet, he would fain make you believe he is a poor, miserable, buffeted,
persecuted, martyred victim of a horrible conspiracy; that he is
"As pure as the ice that's curded by the frost
Froni purest seowv, and hangs on Dian's temple."
But, sir, I think as I remarked on yesterday, if Lord Coke could not
trust himself to give the king advice., our courts should not be permitted to advise parties litigant, though they are as immaculate as the respondent has shown himself to be.
If you have never actually witnessed such a calamity, Mr. Presid(en t, you
have no doubt frequently exercised your imagination upon the various
exciting incidents that attend the wreck of a gallant ship.  The whole of
the dreadful panorama is perhaps before your fancy as soon as mentioned; you hear the dull crash of the fatal concussion; you see a
hundred faces, pale with consternation, hurrying to an  fro; you hear
a hundred voices mincling in one wild shriek; you see the noble vessel go down to the unknown realmns of silence beneath the wave; you
see the hundred struggling victims sink forever in the boiling vortex.
And you see the last survivor of the terrible catastrophe clinging to the
life-boat, and battling for existence with the raging elements around
him. Buoyed by his faithful craft above the treacherous flood, he
valiantly buffets the tumbling billows that rear their heads like hungry
monsters round him. In vain the waters boil beneath him; in vain the
tempest eddies around him,-he is master of the storm. So, sir, is it
with him who is sustained by truth and right,-he proudly outrides
every storm of persecution or distress that beats upon him. But let him
lack these sure supports,-let him be clogged with guilt, burdned with
crime,-like the shipwrecked galley-slave with his fetters on, he struggles a moment with the yielding tide, clutches the little straw that's
wafted near him, and sinks into eternal infamy. And so, sir, I. might
say, were the respondent in this case sustained by truth, right, and
conscious innocence, there would be no necessity for the course he has
found it necessary to pursue. tie would not be compelled to attempt
to cover up the gross outirages of which he stands impeached in these
articles, and convicted by the evidence adduced in this trial, by distorting the testimony, and shutting his eyes to the overwhelming array of
authority my learned colleague produced against him. lie would not
have felt himself compelled to glide as hastily as possible over the in
4311 
HIIIGH COURT OF IMPEACHMENT.
controvertible array of facts establishing every other charge against
him, and predicate his whole defense upon the shade of palliation the
testimony gives to the offense charged in the next article.  He would
never have passed so hurriedly the imprisonment of Eaker, his defamation of Phelan and Fox, his partiality to Walker and Ringer, his abuse
of the privilege of the writ of habeas courpus, his persecution of Kitchen, and all the other crimes of which he stands charged, and bestowed
so much eloquence upon his conduct in the case of the State vs. Kinsey,-the most trivial charge in the whole catalogue,-had there been
no tinge of guilt upon him. He would have taken up each charge; he
would have shown triumphantly by the evidence that he was as innocent as the unborn babe. He would have dwelt upon each allegation
until he had rid his reputation of the least trace of suspicion. But, sir,
the truth is, he was overwhelmed by the facts in the case. He felt
himself sinking irretrievably under the immense weight of the evidence,
and like the poor drowning mariner he catches at every straw.
You remember how he dwelt upon the evidence offered in support of
the fourteenth article, and no doubt wondered that he would linger so
long upon a charge comparatively trivial, whilst there was such an accumulation of proof establishing conclusively the perpetration of so many
more heinous offenses.  And, sir, I can account for it upon no other
hypothesis, than that he desired if possible to divert the attention of the
Court from the contemplation of the darkest features of his case.
But, sir, with all his labor upon this part of the case, he merely pretends that there was some excuse for his tyrannical conduct on the trial
of Kinsey; that the conduct of Mr. Fox justified his harshness and
oppression in that particular case. This I deny. I hold that whatever
may have been the conduct of IMr. Fox, it would not justify the course
of conduct pursued by the court in reference to the rights of Kinsey.
I maintain, sir, that whilst Mir. Fox was acting as an attorney and counsellor at law, Kinsey had a right to his services after he had employed
him, that no court under the constitution of this State could deprive
him of. It is true that the court had a right to fine Fox, and to imprison him for contempt of court if he was out of the line of his duty,
and persisted in remaining so after having been called to order by the
court; but, sir, whenever he sealed that advocate's mouth, and made
him take his seat, he snatched away from Kinsey a constitutional right,
the right to be represented by counsel, and the right, as a freeman, of
selecting what counsel he saw proper.
But I deny that Mr. Fox was out of the strict line of his duty. True,
Mr. Hticks says he was drunk; but whether Mr. Hicks knows more
about that than Mr. Fox does himself, who swears he was perfectly
sober, I won't pretend to determine. Perhaps he does; but be that as
it may, what are the facts as to his conduct?  It seems from the testimony that the court had restricted the time that Mir. Fox should occupy
in addressing the jury.  That Mr. Fox after his exordium, in which he
had perhaps spoken of the fact that the prosecution ws predicated
entirely upon circumstantial evidence, took occasion to animadvert upon
the fact that Joseph L. White had volunteered his services in behalf of
the prosecution. It seems he then proceeded to show the extreme unfitness in MIr. WVhite's volunteering, not merely because the State was
ably represented, but because Mr. White was a gentlemen of talent and
influence which could have been more mercifully bestowed upon the
unfortunate and indigent defendant, andl besides that, of all men in
the world, Joseph should be the last to volunteer in the prosecution of a
case resting upon circumstantial evidence; because Joseph of old, to
whom all other Josephs are indebted for a name, was himself a victim
of circumstantial evidence.  While thus playing upon Mr.  White's
482 
MR. KNOTT'S ARGUMENT.
given name, perhaps by way of apostrophising him ironically, he calls
out "Joseph! Joseph! Joseph!"  Here he is stopped by the Judge
and asked to explain. Explain what? Was he not in the discharge oI
his duty? Hiad he not a right to obliterate from the minds of that
jury the effect of M[r. White's speech, by argument, by irony, by ridicule, or by an appeal to their sympathies, if he should think proper?
Was there anything so criminal in a little good-natured ridicule of a
talented opponent whose influence upon the jury he desired to counteract, that his mouth must be closed for it? Oh! but says the respondent, he had spoken of a grand inquisitorial body!  Well, pray, sir, is not
the grand jury a grand inquisitorial body? And is there any harm in
alluding to it by its right name?  But if it was this expression that
stung his Honor, it was really a long time getting through to the quick.
Hle had made use of this expression in opening his remarks. Hle had
told them, and he had a right to tell them, that the cause they were
called to try had been taken before a grand inquisitorial body, where
the accused could not defend himself, which was strictly true; but the
respondent never thought of the vulnerable nature of his dignity until
Mr. Fox had almost completed a satire of some length upon MAr. White.
It won't do, sir; it wasn't for that he made Fox stop. But perhaps it
was because he appealed to the court to protect him from tle assaults
of the Shieriff, for I know he did, in an ironical style, as he says himself, appeal to the court for that purpose.. Yet that had transpired
sometime before, according to the statement of Mr. Hicks, and nothing
was thought of it.  Then why did he interrupt him whilst apostrophising "Joseph?"  M-y opinion is he did so to annoy Fox, to break the
thread of his discourse, to ruin its effect with the jury, and to provoke
a reply that would afford a pretext for preventing him fiom proceeding.
I arrive at this conclusion from what had already transpired and what
immediately followed.  There lhad been one mistrial in the case before,
and something that then transpired, induced the counsel for the prisoner to take down the testimony. This the respondent would only permit under such restrictions as I'll venture to say no lawyer here ever
heard of before.  He then assumed the right to limit Kinsey's counsel
in their arguments.  At a moment when there was no occasion for it in
the world, he interrupted Mir. Fox and demanded an explanation; and
because Mr. Fox declined complying with a request he had no right to
make, he peremptorily and unlawfully made him take his seat.  All
these things, sir, taken in connection, show a settled determination that
Kinsey should be convicted; and, sir, they were done to bring about
that end.
I don't pretend to say M{r. Fox did exactly as I would have done in
the reply he made to the court, nor that he was strictly in the line of
his duty in that particular. If he was not, it was the prerogative of the
court to fine him for contempt of court; but, sir, he had no right to
deprive Kinsey of the privilege promised him by the constitution of
being heard by his counsel. He lead no right to limit that coansel. If
he had, he had the right to deprive Kinsey of the benefit of counsel
altogether, which no one will affirm. The right of being heard by counsel, means the right of being fully heard; and no court can constitutionally deprive you of it by gagging your advocate in the middle of his
speech.  If Fox was in contempt, hle should have been fined; but in
the name of God Almighty secure to the citizen his constitutional right
of being heard in court. It is of a violation of this right by the respondent that we complain, and the closing remark of Mr. Fox's
speech to the jury gives you the key to the reason of it.  "Gentlemen
of the jury, you see what a chance my poor man has.  Take his case."
Could anything be more eloquent, more touching, or more appropriate?
2S
433 
4IIGI COURT OF IMPEACHIMENT.
" You see what a chance my poor man has,  the victim of circumstantial evidence, deprived of his constitutional right of being heard in
court, by judicial tyranny;  my mouth is sealed; take his case."  I
think with Mr. Fox, sir, that he never made a better speech in his life.
:No lawyer ever did. It is what would have gushed up from the heart
of every just man.
There is scarcely a single provision in the Bill of Rights that this respondent is not proven to have violated. There is scarcely a constitutional guaranty he has not broken.  He has trampled the inalienable
right of personal liberty under his feet. Clothed in the armor of official authority, he has assassinated private character with a treachery
and cowardice only equalled by the frenzied malice that instigated the
dlisgraceful crime.  Hle has denied to the citizen the privilege of the
writ of habeas corpus. Hle has deprived him of a speedy trial without
delay. He has closed the mouth of his counsel. Hie has descended from
the bench and participated in the litigation before him. He has brought
disgrace, obloquy, and contempt upon the judiciary of the State in
every manner that infernal ingenuity could devise; and when arraigned
before the bar of his country, and all these disgraceful and dangerous
malversations proven clearly and indisputably upon him, he points triumphantly to the Supreme Court, and says, "there's the tribunal to correct all the wrongs I have done."  I will not do the respondent the injustice to say I believe he is sincere in this opinion. I am confident
he knows better; but I do believe he entertains so contemptible an
opinion of the intelligence of some members of this Court as to think
he can induce them to adopt a doctrine so absurd.
lIy opinion is, sir, he desires to escape conviction on any terms, even
at the sacrifice of legal reputation and every thing else that can save
him from the imputation of insanity; and hence I have no idea he
believes that the Supreme Court has any more jurisdiction in this case
than I have myself. It is true, sir, and I see now that I and every other
citizen of the State have reason to rejoice at the fact that we have a
Supreme Court, composed of gentlemen selected on account of their
learning, wisdom, and purity of character; and that to that distinguished tribunal every citizen in the State has a right to appeal. But
for what purpose?  M'erely to have the errors of an inferior court corrected, and not to punish the Judge for the malice with which he committed the error, and brought all the evil consequences of that error
upon the aggrieved party. This is the tribunal provided by the constitution for the accomplishment of that object.  The Supreme Court is
designed to protect the individual parties in each case from the effects
of the errors of the inferior court, whilst it is the province of this Court
to prevent the recurrence of such errors as result from a bad intention
by removing from office and disfranchising the party guilty of their
commission.
But let us suppose for a moment that the Supreme Court should have
been appealed to in each one of these cases. Let us suppose that the
Supreme Court is the only tribunal to which the citizens of the State
can look for protection against all the oppression, partiality, abuse of
official authority, and misconduct of which the Judges of our Circuit
Courts may be guilty. in their offices. What security has any one in a
single right he claims as a citizen under the constitution, if such con duct is to be tolerated as this respondent was guilty of in the cases of
MIoore vs. Eldridge, Griffie vs. Berry, and Daugherty vs. Whitehead? which have been selected and presented to you as examples out of the
numerous instances in which he has effectually defeated a fair aQdjudica tion of causes by the Supreme Court, by falsifying the records of his
court, and refusing to sign bills of exceptions, unless they were made to
434 
MR. KNOTT'S ARGUMENT.
omit the very errors he was charged of committing.  I would ask the
Court to take the case of Moore against Eldridge; examine the conduct
of the respondent in relation to it, and tell me what benefit any citizen can hope to derive from an appeal to the Supreme Court, if that
conduct is all proper and right.  I would submit that conduct to a candlid world, and challenge the production of its parallel in the annals of
American jurisprudence.
At the April term, 185S, of the Ripley Circuit Court, there was pending the case of James Moore vs. John Eldridge, administrator of the
estate of a deceased Mr. Parker, formerly a partner in business with the
plaintiff, Moore.  On a certain dlay during the term the case was called
a jury ordered, and the court took a recess for dinner.  During this re —
cess, Mr. Kittrell tells you he found the respondent here, Judge of thecourt as he was, upoll his (Kittrell's) wood pile, discussing the merits of
the case in the presence of a group of some five or six who were standing around him.  Mr. Kittrell took up the opposite side from thle re-o
spondent, and each argued his views at considerable length, -Kittrell
contending that MIoore should recover, and the respondent contending
that the estate of Parker was not liable, and hence, of course, that
MIoore could not recover.  Mr. Kittrell is presently met by Mr. Moore
vwho tells him he is sure to lose the case, for the Judge has already decided against him.  Now, sir, in the name of virtue and of justise, look at
that conduct! The Judge orders a jury in a case, and while the Sheriff
is summo)ning it, he descends from the bench, collects a crowd of citizens about him, decides upon the merits of the case, maintains his view
with zeal in a long argument. The community all become apprised of
the Judge's decision.  The parties come into court satisfied of the preadjudclication of the case; and the Judge, well prepared to sustain his
argument upon the wood pile by a decision upon the bench, takes his.
seat with the gravity of a Hale, to go through the mockery of trying a
cause that everybody knows he has already determinedl!
But, sir, shameful as this conduct is,-disgraceful as it is to the judicial
cha-'racter, datngerous as it is to the interests of the citizens of this State,it is by no means the most reprehensible that we find the respondent
guilty of in this very case.  Having decided the case against Moore in
the streets, it is not difficult to imagine that he would use every efbfort to.
eftect his defeat in court; but we find him going even further than that.
We find him effectually defeating his right to a fair trial inll the Supreme
Court.
Upon the trial of the case, Lemuel Kittrell was the only witness introduced, and he was introduced I believe to prove that Parker had
executed an instrument of writing produced as evidence of the fact
that Parker's estate was liable to Moore for the amount claimed.  The
case went against Moore; and desiring to take it up, he presented his
bill of exceptions, embodying the testimony of Mr. Kittrell, to the respondent for his signature. The respondent refused to sign the bill of
exceptions, because the evidence of Kittrell set out in it old not state
that the date of the instrument had been altered. Mr. Kitchen, who
was Mioore's lawyer, told him Kittrell had never sworn to any such
thing.  Mr. Bedford, counsel for Mr. Eldridge. told him also that Kittrell had not sworn to any such thing. Not satisfied with the statements
of both parties, Mr. Kittrell is called and asked if he had testified to
anything concerning the alteration of the date of the instrument? He
said that he had not; that the instrument was as he had always seen
it; that he had given no such testimony as the Judge had said he
had. Yet, sir, in spite of what Kitchen, Bedford, and Kittrell all tell
him, hlie interlined the testimony of Kittrell with his own hand, so as to
make it appealr that Kittrell had sworn to a fact that he had not,
435 
HIGH COURT OF IMPEACHMENT.
namely, that the date of the instrument had been altered,-and signed
the bill after he had thus falsified it. There can be no mistake in these
facts, sir. Kitchen, Bedford, and Kittrell all swear to them.  ie refused
to sign a bill of exceptions embodying all the facts, until he had falsified
it,-until he had made it so as almost to insure an affirmance of
his judgment by the Supreme Court. And Moore, finding he was
not to be permitted to present his case to the Supreme Court as it had
been tried, abandoned his appeal, and, as you are told, compromised the
case.
It is true, sir, the witnesses all tell you there was a blot, or some kind
of an apparent obliteration of the date; and MIr. Hickls even states that
there was a new date in different ink discernable.  But that was a matter of inspection. If it was a fact material in the case, Kittrell had not
sworn to it, and this respondent had no right to falsify his testimony
and make it appear that he did. Hlie had no right to put into a witness'
mouth words he never thought of uttering.
Why, sir, look at tihe difference this little interlineation in that bill of
exceptions makes in the case! Here Moore presents a papier purporting
to be signed by the deceased, showing  clearly that the deceased
promised to pay him so much for his services during the succeeding
vear.  The date then becomes material, and if the fact be established
that so material a portion as the date has been altered, and no explanation of the alteration appearing, the whole paper upon which Moore
predicates his case is vitiated. This material point the defendant fails
to make, and the Judge takes it upon himself to make it for him in the
bill of exceptions. The truth is, sir, he had expressed an opinion in
public, and argued it zealously off the bench; he had sustained it in
couit upon the trial; and to prevent that opinion fiom being reversed
by the Supreme Court, no means were so base that he would not resort
to them.
But again, sir, take the case of Berry against Griffie, pending in the
Stoddard Circuit Court, at the November term, 1858.  I learn from this
record that this case had been brought to recover back a certain sum of
money  )aid by Berry to Griffie, for Griffie's claim upon a piece of land,
and a lot of rails he was to make.  In the instrument upon which the
suit is founded it is not pretended that Griffme had any interest in the
land more than a mere claim upon govelnmenit land; and hfom anything
I can see in these papers the sale of Griffie's interest to Berrv was a fair
and valid transaction, showing no design upon the part of Griffie to
overreach Berry, who made the contract with his eyes open.  But be
that as it may, during the trial of this cause the respondent turned to
the jury and told them that "Griffie had no interest in the land susceptible of conveyance, at the time he made the contract." Now, sir
what right had he to make any such assertion, even if true, to that jury'
That was the very question they were trying; and was it fair, was it
just, was it even necessary that he should interfere with ble discharge
of their duties under their oath, to the prejudice of either party? You
know very well, sir, the influence a Judge's position necessarily gives
him over the minds of the jury. They not only conclude from his position that he is an honest, just, unprejudiced man, but that he knows
the law andi desires to see it fairly administered; hence they listen attentively, and in ninety-nine cases out of a hundred believe every syllable he utters, never suspecting the slightest bias.  I appeal to you then,
sir, to know if it is right,-if it is lawful,-if it is consistent with the
right of the trial by jury, for a Judge to forestall the jucldgment of a
jury by expressing to them his own opinion upon a matter of fact submitted to them?
Suppose you were plaintiff in an action of ejectment, and the Judge
436 
MR. KNOTT"S ARGUMENT.
should tell the jury you never had any title to the land in question, ir respective of the evidence before them,-suppose he should take it upon
himself in an action of trespass, to tell the jury that the plaintiff never
had any title to, or possession of the premises,-would you not consider
him far beyond the line of his duty? Sir, it is the right of every citi zen to lhave the facts connected with any case in which he may be inter ested tried by an unbiassed jury of his country; and so careful is the
law that the minds of that jury shall be kept free from any prejudice
whatever,-so careful is the law that the jury shall decide upon the
facts from the evidence, and that alone, that it prohibits the juror after
hlie is sworn firom conversing with any one, or from permiitting any one
to express an opinion, or even to talk to him about the case, until
after he shall have delivered his verdict in court. Yet it is proven that
this respondent, whose sworn duty it is to see that the trial by jury is
maintained inviolate, is himself the first to violate it,-that seated upon
the bench for the administration of justice between his fellow men, he
so far forgets the solemn obligations of his office as to publicly espouse
the cause of one of the parties, and attempt to forestall the action of the
jury by an unqualified expression of his own opinion.
Sir, if such conduct as this is tolerated, the trial by jury, upon which
the sages of the law have bestowed so many encomiunms, is a mere farce,a contem)ptible cheat,-a mean fraud upon the honest citizen. E~,tablish
a doctrine that a Judge has the right to brie the whole weight of his
influence to bear directly upon the jury in favor of any party he may
select, and you make our court houses mere market places for the retailin of judicial favors.
Of this conduct the House of Representatives complain.  They contenid that in thus interfering with the proper administration of justice,
he e:n:ibited a degree of partiality inconsistent with his position as
Judge, injurious and oppressive to the opposite party, and sufficiently
dirtceul to the iud(iciary of the State to demand the dismissal of the
respondent from office.
But this is by no means the worst feature in his behavior in this case
of Berry vs. Gri4fe, as the evidence clearly showvs.  After the respondent had turned to the jury and told them the defendant never had any
interest in the land susceptible of conveyance, they retired, and after
somne deliberation brought in a verdict for eleven dollars more than the
plaintiff had demanded.  Air. Tyrell, the attorney for the defendant,
filed a motion for a new trial, setting out among other reasons' that the
jury were misled by testimony to prove who was the owner of the land
in question at the time of the tri!;"  that that evidence ought to have
been excluded;" and "'that the iurv was misled by the opinion expressed bys the court that the defendant had no interest in the land
susceptible of conveyance." These three reasons inserted in the motion
for a new trial were regarded by SIr. Tyrell as valid, and argued by him
before the court.. Hle urged very properly that it was not rig'ht that a
Judge should bias the minds of a jury by expressing his own opinion
as to the merits of the case in their hearing, and offeredl the affidavits of
some of the jurors that it was upon that very expression of his that the
verdict was predicated; but the respondent overruled his motion. Mir.
Tyrell then filed a motion in arrest of judgmeiit, which was also overruled; whereurion he drew up a bill of exceptions embodying these
three reasons to which I have just calleld your attention as haviug been
uraedl for a new trial and overruled, and tendered it to the court for his
signature; but the Judge refised to sign it unless these three reasons
were stricken out; nor would he sign it until MIr. Tyrell had stricken
themn out.
SNow  sir: there can be no doubt of these facts.  Here  I have in my
437 
HIGH COURT OF IMPEACHIMENT.
hand the motion for a new trial itself, with all three of these reasons ill
it, and here is a certified copy of the bill of exceptions, with all of them
stricken out; and MIr. Tyrell tells you on his oath how it came to be
done, and not only that, but that he urged them as grounds for a new
trial, and relied upon them as grounds for a reversal of judgment. That
he did act as he is charged in this instance there can be no shadow of
doubt; but why did he do so?  It is but just to presume  that no
rational man ever acts without some motive. hlis will must be and is
concerned in, and consents to all his voluntary acts; and from the circumstances surrounding, and the consequences resulting from his actions, we must infer the intent by which he is actuated. Judging, therefore, from the partiality he exhibited in favor of Berry upon the trial,
and from the fiact that the inevitable consequence of striking out the
reasons relied upon for a new trial would be to deprive Griffie of a fair
trial in the Supreme Court,-we are forced to the conclusion that his
conduct wnas shaped with that view, particularly when  the still darker
circumstance of his refusing to examine and sign the   testimony taken
in the case is taken into consideration.
MIr. Tyrell tells you hlie presented a fair and full statement of all the
evidence given in the case, and desired the respondent to examine and
sign it, that it might go with the bill of exceptions; but this he utterly
refused to do, pretending  hat there was so much noise in court during
the trial hie could not hear what the evidence was.  Mr. Tyrell then
went to Mlr. Bedford, who was the opposite counsel, andl got him to assure the court that the evidence was properly set forth; hut he still refused to siin, or even to look at it.  Such is the testimony of both Bedford and Triell.
Now, nmay it please the Court to review these two cases for a single
moment. In each of them the respondent selects his party, and shamelessly exhibits his partiality for him to every spectator present; in each
of them his favored party is successful; in each of them he falsifies the
records, and utterly precludes the unsuccessful party from all possibility
of a fair trial in the Supreme Court; and yet, sir, he claims that the Suprenie Court alone should review his official conduct.  Tlhese two cases
sir, and the case of Daugherty rs.'VThitehead, tried at the same terimr
with the case of Berry A.x. GrifRe, sufaiciently  demonstrate the fact that
a Judge of the Circuit Court is not oily endowed with sufficient powers
to effectually defeat the right of the citizen to an appeal to the Supreme
Court, but that, possessing like frailties, acted upon by the same impulses, influenced by the same passions that others are liable to, they
may exercise that power to the destruction of the interests of all they
may desire to oppress, anal that thev will d(o so unless restrained by the
proper authority.  And to you is submnitted the important question
whether they shall be permitted to force all cases coming before themn to
conform to their Procrustean beds; whether they shall be permitted to
espouse the cause of a favorite party, win public favor to his cause by
discussing, its merits in the streets, forestall the judgmients of the ijury
by an unqualified expression of their opinions from the bench, and then
cover up their base partiality and ignominiious tyranny by refusing the
unsuccessful party the benefit of an appeal to the Supreme Court, unless
such parts of the record as expose their perfidy are suppressed.  It is
now submitted to you whether our Circuit Courts, instead of being the
beneficent protectors of the rights and interests of all, may remorselessly
prey up)on the objects of their sacred guardianship, and then withhold
from the victims of their unjust and arbitrary tyranny the remedy guar antied to them in the constitution.  You are now asked lwhether liberty
and justice, outraged by our judiciary, shall veil their beauteous faces
forever from our view, and their sacred shrines become the loathsome,
438 
MR. KNOTT S ARGUMENT.
putrid dens of foul corruption. You are now asked, sir, whether our
courts shall be an honor and a blessing to our country, or whether, by
such a course of unheard of corruption as the respondent is proven to
have been guilty of in these three cases, they shall clothe themselves in
the same immortal infamy that makes the names of Star Chamber and
High Commission, after the lapse of more than two centuries, still the
abhorrence of an enlightened nation. And these questions you must answer to your consciences and your constituents.
But, sir, in your just execrations of the highly disgraceful conduct of
the respondent in connection with these cases, let me ask you not to
forget another charge alleged against him of a very serious character for
misconduct of another variety at the same term of court. The testimony
develops the fact that at the August term, 1858, of the Stoddard Circuit
Court, there was an accusation pending before the grand jury against
one David G. Hicks, for an assault with intent to kill. Whether Mr.
Hlicks was under recognizance or not I will not say; but one thing is
certain,-the respondent knew this accusation was pending against him.
Mr. Hicks, when upon the stand the first time, told you thatt Mr. Hale
told hinm he had told tihe Jug,e so himself.  After dinner, Mr. I'icks
was called to tile stand again, for what purpose I will not undertake to
say; but while upon the stand then, he took occasion to say he had been
mistaken; that Mr. Hale had not told him that he told the Judge of
the accusation pendii(ng against Ilicks.  But Mr. Hale himself being recalled, tells you it is true he did not tell thel respondent there was an
accusation pending ag,ainst Mr. Hicks for shooting at Mr. Conrani, but
that several olAers told him so in his hearing.  Yet, notwithstanding this
knowledge, the respondent, in the absence of Mr. W~oodsides, the Circuit
Attorney, appointed David G. Iticks Circuit Attorney pro tem.  The
grand jury found a true bill against Hicks, notified the Judge of the
fact. as Mr. Hale tells you, and asked him to appoint some attorney to
prepare an indictment.  This, however, the Judge failed to do.  So Mr.
Hicks, acting as Circuit Attorney, prepared the indictment against himself, and it was returned to the court " a true 4'M."  The respondent tbea
knew-of course, he was bound to know-that there was an accusation
pendi)ng against Mr. Hicks; but. sir, this record shows no order for a
capic'.s, no voluntary appearance at that term, nor that any capia,c issued
for Mr. Hlicks in vacation.  I-e goes upon his "parole of honor "-a process unknown, sir, to any of our courts, I believe, except those over which
this respondent has the honor to preside-until the next November
term.  At that term the case of the "State of Missouri vs. David G. Hicks,
indicted for assault with intent to kill," is entered in full upon the
Judge's docket and stares him plainly in the face, so that he could not
avoid seeing it but by shutting his eyes.  Woodsides, the regular Circuit
Attorney, is again absent; and, as this record shows you, sir, Mr. Hicks
must again be appointedc to prosecute the pleas of the State, notwithstanding the pendency of this indictment against him.  Wlhther this
case was placed on the first-day's docket or not, I will not undertake to
say; but it is in evidence that this escaped the general massacre of indictments which occurred on that dlay.  Mir. Hicks did not weep, I presume, like Niobe, over the indiscriminate slaughter of his numerous
progeny, which, we are told, the lawyers made on that occasion, but
probably, desiring to prolong the sport, told Mr. Miller, his counsel, not
to file a motion to quash the indictment against him for several days,
until the grand jury should be discharged; and so we don't hear of his
case being called even until after the grand jury is discharged.  Mr. Mliller then comes into court and asks the court to quash the indictment
against )Ir. Hicks-files no motion, assigns no reason, but simply asks
that it be quashed; and the respondent, without looking at the indict
439
I 
HIGH COURT OF IMPEACHMENT.
ment, without appointing any attorney to represent the State, without
even waiting for reasons to be filed,-so eager was he to discharge his
friend,-quashed the indictment, as is shown by this record.  The grand
jury had been discharged; there was no one there to say a single word
for the State,-to ask that Mir. Hicks be secured by recognizance until
another grand jury could pass upon the case, which, indeed, under the
circumstances, would have been proper in the Judge to do upon his own
motion.  So there is no atonement for violated law,-no vindication of
justice and the dignity of the State; but Mir. Hicks, through the reprehensible lenity of the court, goes thereof without day.
Now, sir, contemplate the spectacle presented in these facts, in all its
horrible deformity,-see the rights of every citizen in the State prostrate
at the mercy of the Judge and Circuit Attorney; and if you are powerless to correct an evil so gross, so glaring, and so dangerous, in the name
of justice,-in the name of all that man can hold dear,-I implore you to
go back to those who sent you here and tell them what you have seen
and know,-tell them a Circuit Attorney may imbrue his hands in the
innocent blood of an unoffending citizen; that he may prepare the indictment against himself; that he may stalk abroad among community
without even the restraints of bail; that at the ensuing term of court his
case may be passed over until the grand jury has been discharged, and
then he may come into court in person or by his counsel and ask that
the indictment drawn against himself, by his own hand, and made defective on purpose, may be quashed; and that the Judge of the court,
coming in as the great actor in the last scene of this grand drama of corruption and wrong, may quash the indictment without even looking at
it, without even wa,iting to have a reason filed, and without appointing
any one to protect the interests of the State,-tell them that a Circuit
Attorney may commit any crime known to the code, and, if he is a pet
of the court, the court mnay save him from punishment; and that for
such outrages upon justice and the security of the private citizen, there
is no power that can reach him; and let them in the name of God fortify themselves against an evil that may prove destructive to their most
sacred rights,-let them repair a breach in the fortifications they have
sought to erect around their rights, ere it let in upon them a thousand
monstrous wrongs for which they have no remedy.  Ah! but perhaps
,Ir. Hicks was a cJ cr fc(7{oI!
It does really seem to me, sir, that this respondent, in his official career, has endeavored to bankrupt an invention of boundless fertility in
the production of iniquity and wrong. His conduct, since he has been
Judge, is a sort of kaleidoscope, exhibiting corruption in every conceivable variety of form.  He seems to have permitted no occasion, no circumistances, and no place to check the black drippings of depravity
perpetually distilling from him.  He makes an open exhibition of his
partiality upon the street; he converts the bench into a theatre for the
enactment of the most disgraceful oppression in every shlaple-thlat malice
can conceive; and not yet content, he explores the privacy of the grand
jury room in search of a new field for the display of a new variety of
official iniquity.
I maintain, sir, that the Judge of the Circuit Court has no more right
to visit a grand jury in their retirement for the purpose of instructing
them as to their duties, than I, or any other private citizen has, and if
he presumes to do so, I hold him guilty of a violation of law as well as
propriety.
The constitution and the statute law of the State both provide that
the proceedings of courts of justice shall be public. Read the thirty-fifth
section of the act establishing courts of record: " The sittings of every
court shllall be public, and every person may freely attend the same.'"
440 
MR. KNOTT'S ARGUMENT.
Does this mean that a Judge may discharge one portion of his functions
* publicly, and another privately? if so, how do you ascertain which are
his public, and which his private, inquisitorial duties? If you grant that
he may exercise any portion of his functions in private, have you any
other statute than the one I have read to justify the conclusion that he
may not take his seat and merely open court in public, and then retire
to a private chamber and transact all the other business under the se crecy of lock and key, if so disposed?  Can you find any more authority
either in reason or law for a Judge going to a grand jury room and
instructing them in their duties, than he has to invade the privacy of a
petit jury room, and there instruct them in relation to a case they may
have under consideration? Can you cite a sentence of law, or show a
particle of reason, that will justify a Judge in claiming the privilege this
respondent has shamelessly usurped,-of giving the grand jury private
instructions? Sir, you cannot. But, inasmuch as he is the guardian of
the interests of the whole community,-inasmuch as he holds in his
hands the law designed for the protection of the life, liberty, property,
and reputation of every citizen; and inasmuch as the interests of every
citizen are immediately involved in the manner in which his duties are
discharged; the law requires him to discharge those duties under the
supervision of his employers,-under their immediate inspection,-in
full view of the whole community; nor does it make any distinction in
those duties.
Suppose a Judge should claim the prerogative of trying a man for
murder with closed doors-with no one present but the accused, his coun sel, the State's attorney, Clerk, jury, and the witness under examination;
or suppose that, after the jury in.ny case of felony had retired to con sider of their verdict, the Judge should claim and exercise the right of
going into the privacy of their room, and there instruct them upon the
case,-who would not feel a thrill of horror at such a gross and daring
usurpation? Who would consider himself safe if such a thing were per mitted to be done?
Yet, sir, dangerous and reprehensible as such a usurpation would be,
the prerogative of instructing the grand jury privately would be a thou sand fold more disastrous and execrable. Clothe a Judge with this ex traordinary privilege, and mark the terrible train of tremendous coniise quences that must inevitably result.  The Judge himself may be guilty
of innumerable crimes, or his friends may have, with a high hand, rioted
over the outraged rights of their fellow-citizens, and the down-trodden
laws of the State, through a long career of crime; and yet hle sets at the
head of the grand jury, and, as they inquire of each particular case, he
can instruct them that such is not an indictable offense under the law,
which they are sworn to receive at his hands.  I need not remindil  you
how he screened Henley, his bosom crony, from indictment in this very
way, for having revealed the secrets of the grandjury, at the Butler Cir cuit Court, in May, 1858; but I will presently show you how he endcleav ored to screen himself and others. 
And besides, sir, see what a terribly fearful engine of tyranny he would
thus be enabled to wield to the utter and irretrievable demolition of all
upon whom he might be disposed to wreak his vengeance. Using the
influence of his position, he may procure a distorted statement of facts
against an unoffending citizen, who has been so unfortunate as to pro voke his ire; pervert the law in his private instructions to the grand
jury; procure an indictment against him, and chain his devoted victim
down to suffer for months, and perhaps for years, all the horrors inci dental to an  u.just imprisonment.  The poor man is finally dragged
forth, declared guiltless by a jury of his country, and restored to liberty
merely to linger through a few years of pain and sorrow, his constitution
4
441 
HIGH COURT OF IMPEACHMENT.
broken by imprisonment and preyed upon by disgrace, his hopes ruined,
and his reputation forever blasted by the imperishable odium of a prosecution for an infamous crime, until. relieved by the friendly hand of
death, he sinks into a welcome grave, "unwept, unhonored, and unsung;" whilst the fiend in human shape, whose poisonous breath wrought
all this piteous desolation, is caressed upon the bosom of society, unsuspected of a crime that would make the devil himself hang his head in
shame. Ah! yes, he chuckles over the ruin his diabolical malice has
effected, and says, "I'm safe; the grand jury were sworn never to divulge what transpired in their room;  my victim rots in disgrace, and
his orphan children wander friendless and homeless through a pitiless
world, but my secret is safe; my official position is the'open sesame
to the best society; my revenge is sated; I'll roll in luxury now, until
my'eyes stand out with fatness.'
But, sir, palpable as these considerations are, the respondent has the
effrontery to admit that he has committed so gross a violation of the law,
and claims that he did right in doing it.  lie has told you he visited the
grand jury during their retirement at the August term, 1858, of the Stoddard Circuit Court.  And why does he say he did it? Because David
G. Hicks was a young and inexperienced lawyer, and was unable to give
the information they needed.  Is that an excuse?  Why did he appoint
this callow fledgeling of the law, knowing he was incompetent? There
were Bedford, Kitchen, Phelan, Tyrell, and Davis, all able and experienced
lawyers. Or, if the court must give the instructions, why not have the
grand jury brought into court, as required by law? Whily not transmit
to them through Mir. Hicks the opinion of the court?  It is presumed
that he could understand and remember it, at least until he reached the
grand jury room.
Sir, this excuse is too flimsy and transparent.  There is no sincerity
or truth in it, as the facts clearly show. Mr. Jackson tells you that he
and the Judge were in conversation, when Mr.  licks came and told the
Judge that the grand jury had in their possession a piece of paper citing
a certain section in the statute,-Mr. Jackson did not know what one;
that the Judge instantly went off in the direction of the grand jury room,
and presently returned with a paper, which Mr. I-Hicks identified as the
one of which he had spoken. When the Judge entered the grand jury
room, Mr. Carlisle, who was a member of the grand jury, tells you there
was complete silence for some moments.  As soon as the anger of the
Judge would give him tongue, he says, " some body has been tampering
with the grand jury; there is a paper here I want." Now, sir, why did
Mr. Hicks come so straight and notify the Judge that that paper was in
the grand jury room?  Why should the Judge become so agitated about
it? Why did he rush to the grand jury room so impetuously and demand
it? Perhaps that paper is the key to the appointment of Mr. Hicks Circuit Attorney pro tem. You will remember, sir, that a short time previous
the respondent had imprisoned one Jonas Eaker, and compelled him to
answer to a writ of mandamus that had not been served upon him.  Mr.
Eaker considered this an act of willful and malicious oppression, or, to
say the least of it, misconduct; and Mr. Carlisle tells you he presented
the respondent to the grand jury for it, and to show them that it was
indictable, handed them this famous slip of paper, citing page 613 of the
ReIevised Statutes of Missouri:
SECTioN 16.  Every person exercising or holding any office or public trust, who
shall be guilty of wvillful and malicious oppression, partiality, misconduct, or
abuse of authority in his official capacity, or under color of his office, shall, on
conviction, be punished by imprisonment in the county jail for a term not exceeding one year, and by fine not exceeding one thousand dollars.
442 
MR. KNOTT'S ARGUMENT.
The reason is obvious, then, why his Honor was so wrought upon by
that little piece of paper. It concerned his own security, and he intended to suppress it at all hazards,-the law, reason, and right to the
contrary notwithstanding.
But, sit' how does he behave after he gets the paper?  Is he content
with securing that merely?  -\o. sir,.  He turns to this sixteenth section,
and instructs them that it does not apply to  im,,-that it will apply to
Judge Eaker of the County Court, but not to him!
Here, sir, is the very climax of corruption. See the regular gradations
in this deliberate career of official crime.  He first willfully and maliciously oppresses Eaker,-he knows he has violated the law; hlie is conscious of guilt, and expects to be presented to the grand jury.  He
appoints Mr. Hicks Circuit Attorney, knowing there was an aecusation
pending against him, in order to have the means of being kept' advised
as to the action of the grand jury.  He tolerates in Hicks a disclosure
of the secrets of the grand jury.  Availing himself of that disclosure, he
violates the law againi  by invadiu the pirecincts of the grand jury room
and there he puts the finishing touch upon this panioraima of official iniquity by deliberately mislirecting them in the law, in order to screen
himself from indictment! In the name of G-od Almighty, I ask if corruption ever exhibited its hideous, disgusting features so shamelessly or
so boldly before?
B-,t, sir, he was not dulty of this double crime only once.  lie again
visited the grand jury durinu  their sitting at this same term of court.
AVhy he dlid so I vill not now undertake to deternine; but it will certainly strike most minds as a remarkable coincidence that, at the very
moment he entered the grand jury room, they had under consideration
a charge against himself and Mr. Hicks for gambling.  W~hether Mr.
iIickls again apprised him of the business before the grand jury, or
whether he was appointed Circuit Attorney pro temn. for that purpose, is,
perhaps, unnecessary to inquire; but certain it is, that whvilst on this visit
to thie grand jury the respondent told them that playing cards for whisky,
oysters. and such things, was not an indictable offense; and it is also
certain that the grand jury foundt an indictment against the respondent,
David G. Hicks, Isaac Brand, and Orson Bartlett, for gaming for these
very articles, and at that very term of court.
It is entirely immaterial, i in my estimation, whether the facts of which
the respondent was guilty amouinted to betting, in law, or not.  That
was a question of fact foa the jury to determine, and with which the
Judge had no right to interfere, either in or out of the grand jury room;
and the respondent was willfully and maliciously guilty of gross official
misconduct in endeavoring to force their opinions upon this point of
fact to conform to his own, right or wrong. The grand jury, hlowever,
it seems withstood the influences of the Jud,ge, and found an indictment
against him, and Miir. Hicks, and Mr. Brand, and Col. Bartlett, for gambling for whisky.  Col. Bartlett pleaded "not guilty," and claimed a separate trial; and, sir, upon this trial the respondent  as if determined
not to be out done, -determined that the parties to that indictment
should escape the penalty of the law, right or wrong-was, if the evidence you have before vou is true, guilty of one of the most shameful
exhibitions of  illfutil partiality-one of. the most daring and outrageous
abuses of his official authority-the judicial history of this or any other
country affords.
Review for a single moment the facts connected with this trial.  A
jury is empanneled and sworn to try the cause; the State introduces
her evience, and proves that the despondent, David G. Hicks, Isaac
Brand, and thie defendant, Bartlett, did, at a certain time in Stoddard
county, play at a game of cards, and that it was made to depend upon
443 
HIGH COURT OF IMPEACHMENT.
the issue of that game who should pay for the whisky to be drank by
the four.  After the State had proven these facts, the respondent, upon
the bench, took it upon himself to tell the jury that these facts did not
constitute a betting, and were not indictable under the statute against
gambling.  Not content with merely enunciating this view of She case,
he proceeded to enforce it by a zealous and labored argument,-he
brought forward a great variety of examples to prove his position correct.
Not yet content, he told them they should not find a general verdict,if they did, he would set the same aside; that they-should find the facts,
and he would take it upon himself to say under the law whether the
defendant was guilty or not. Such are the facts, sir, established by an
array of testimony impregnable as the rock of Gibraltar,-such are the
facts that the respondent, after flatly denying in his answer, is now
forced to admit. And I submit to the wisdom and intelligence of this
honorable Court,-I submit it to the candor of the people of an enlightened State,-if the annals of American jurisprudence afford a case of
parallel atrocity to the one they exhibit.
The Leg,islature of our State, sensible of the undue influence a Judge
may exercise over the minds of a jury,-knowing the impression some
times made by a tone of voice, a look, or gesture,-conscious of the
natural proneness of the human heart to partiality, and aware that, if
permitted at all tosum up or commenton the testimony before a jury, the
Judge might at least be tempted to unsettle the seals of justice,-has,
by special statutory enactment, expressly prohibited the exercise of such
a privilege.
They were also satisfied that, if permitted to instruct a jury orally as
to the law, a court could mislead them with perfect imlpnity,-obtain
just such a ver-dict as it might desire,-aand then so modify the coloring
of its instructions in the record submitted to the inspection of the Supreme Court, on appeal, as to present entirely a different aspect to the
one before the jury; and in the very same act provided that the court
shall not instruct the jury orally, unless both parties consent to it. In
order to prevent a court from giving instructions in any case, and then
denying that any such instructions were given, the law requires that
they shall be in writing. I will not attempt to comment upon the wisdom and propriety of this provision of law,-for such must be apparent
to even the most casual thinker,-but merely read the tact. Section
thirty-one, article six, practice and proceedings in criminal cases, Revised
Statutes, page 1195:
The court shall not, on the trial of the issue on any indictment, SUrn up or commnent upon the evidence, or charge the jury as to matter of.fact, unless requested
so to do by the prosecuting attorney and the defendant or his counsel; but the
court may instruct the jury on any point of law arising in the cause, which instructiorts shall be in writing.
Now, sir, from the evidence of Mr. Bedford, Mr. TyrelleMr. Kitchen,
and others, you find the respondent, in utter contempt of this plain requirement of the statute, without the solicitation of any one whatever,
taking it upon himself to comment at great length before the jury, in
this trial of Col. Bartlett, upon the facts adduced. Hie taxes his inenunity for illustrations to impress upon the minds of that jury the idea that
the facts proven do not constitute an offense indictable under the statute.
Hie charges them that, although the facts detailed by the witnesses may
have been true, that the defendant is not guilty.  Hle not only violates
this plain statute in the manner of giving his instructions, but the instructions themselves were wrong, and he knew it.  What was that jury
summoned for, sir? Mlanifestly to determine whether or not the defendant was guilty as charged. But why go through with so ridiculous
444 
MR. KNOTT''S ARGUTMENT.
a formality, if they are to set there as twelve senseless blocks merely to
echo the opinion of the Judge?  The question, sir, as to whether the
facts proveni constitute the crime charged, was clearly one, and indeed
the only one, for the jury to decide; and the respondent either knew it,
and willfully transcended his duty, or he was so shamefully ignorant of
the duties pertaining to his position that he should not longer be permitted to disgrace himself and his office, and endanger the rights of cotmmunity, by occupying it. I will not presume to advise him which horn
of this unenviable dilemma to take.
But, sir, I do not execrate the offense of which this respondent acknowledges himself guilty in this instance,-I do not hold it up to your
abhorrence as one of the most despicable crimes with which he could
have polluted the "judicial ermine,"-I do not invoke upon it the fullest
vengeance of the law merely because it is a violation of the statutes,
statutory provisions, to the whims of his corrupt passions, are like dry
stubble before a hurricane of fire,-you have seen him violate them and
trample them under his feet with a facility and an indifference that no
longer excites your surprise; but I denounce it as a crime that should
hurl him from his office, brine upon him the loathing and contempt of
all good men, and embalm his name in eternal infamy, because it strikes
at the very vitalitv of one of the most invaluable privileges,-one of the
most cherished rights of every freeman,-the trial by jury.
I would not, sir, were I even less exhausted than at present, attempt
a dissertation upon this glorious right of every human being under the
operation of the beneficent institutions of our beloved country.  Statesmen, taught by the experience of ages its inestimable value, have made
it a subj ect of constitutional enactment; and sages, imbued with a burning eloquence that I can never hope to emulate, have portrayed its
beauties, and commended its preservation to the jealous vigilance of
freemen, in strains of impassioned eulogy that I have no power to imitate.
I simply ask you to behold a Judge of one of your Circuit Courts, under
a solemn oath to support the constitution of your State,-under every
obligation that can be supposed to bind a human being to a strict discharge of a high and solemn trust,-striking this sacred right of the citizen into the dust.  I ask you to hear him tell a jury in a criminal case,
"you may find the facts, but I will determine whether the defendant is
guilty or not under the law;" and if the daring and outrageous innovation
upon the right of the trial by jury does not thrill you with horror, I
must confess my utter inability to conceive any public calamity that
could excite your alarm.
There is no evading the facts, sir. All the witnesses who testified
upon this point tell you unmistakably, and the respondent himself admits, that he told the jury "they might find the facts, but he would determine whether the defendant was guilty or not;" and even threatened
to set aside their verdict if they should find the defendant guilty. These
facts are so, without the slightest variation, or attempt to palliate them.
And will this honorable Court tell the constituency of Missouri that a
Circuit Judge may throttle a jury, and compel them to bring in a verdict such as hlie desires?-that he may,ga-, them in the midst of their
duties?-that, by the potency of judicial magic, he may convert them
into twelve insensate tools,-a let of senseless automatons,-to act as he
acts upon them, and to echo merely the sentiments of the court, right
or wrong?  Will you tell them, sir, that a Judge may preside at a trial
in the issue of which he has himself an indirect interest, and command
the jury to find a particular kind of verdict, and still be held guilty of no
wrong, no corruption? Will you tell them that it is perfectly right when
a citizen is under trial for treason, murder, or any other felony, for the
court to invade the province of the jury; and claim the right to deter
445 
HIGH COURT OF IMPEACHMENT.
mine tile question of his guilt? Will you endorse the doctrine that
in any criminal case the jury may be compelled to find a special verdict
as to the facts, under a threat that tihe court will set aside any other
verdict they may bring in?-that the jury may only find the facts, and
that the court must say guilty or not guilty under the law?  Will you
tell them that the glorious privilege of being tried by your equals,-by
twelve honest and unprejudiced men,-sanctified by constitutional enactment, and venerable from the use andl approbation of ages, has dwindled
to this poor, contemptible, disgusting fa'ice?
I regret, sir, that I have not the strength to make an extended application of the monstrous doctrine acted upon by the respondent in this
case, in order to exhibit it in all its horrible deformity.  But I will ask
you to suppose just one case. A man is arraigned for murder. A jury is
sworn, and witnesses are introduced who relate all the sickening details
of the horrible transaction.  The length and depth  and situation of
each ghastly wound is minutely describedl.  The demoniac oath of the
fiendish murderer, as he plunged the glittering steel to the heart of his
helpless victim, and that victim's dyinig shriek, are each detailed.   The
bloody knife, and the shirt stiff with gore, are both exhibited. The remorseless felon sets sullenly by, whilst the Judge instructs the jury that
"they may find the facts, but he will say whether the prisoner is guilty
or not under the law."  The jury retire, and soon return with a recital
of the sickening details of the horrible trage(dy, which the Judg(e himself has just heard fromn the lips of the witnesses.  The jury is discharged, and the Judge concludes the disgusting farce by saying, "it
is the opinion of the court that the facts do not constitute an ofilenrse
the prisoner is a'clever fellow,' and may go hence without day."  So
the villain is turned loose to butcher somiebody else; and every sensible,
thinking man concludes, very justly, that all the boasted protection of
the law is a disgraceful cheat.
I will not trespass upon the attention of thie Court to show that a
Judge, clothed with the absolute power claimed by the respondent in
this case, could as easily pronounce an enemy guilty as he could a friend
innocent: but I must request the Court to look at the system this i'nmaculate respondent has been seeking to inaugurate in the Fifteelnthi
Judicial Circuit.  I would to God, sir, I could exhibit to every citizen
of that intelligent community, to-day. the studied systemi of petty but
complete despotism this respondent has deliberately attempted to fix
upon them. Look at it, sir.
Hle tramples upon the liberty of a citizen,-imprisons him without
authority of law; and when that citizen complains to the grand jury of
his oppression, he goes before the grand jury and tells them he is above
the law,-they can't indict him. Hle sigles out his victim in his charge
to the grand jury; publicly charges him of a crime; follows the grand
jury to their room; insists upon, and by perverting the law, obtains an
indictment; and having in his charge to the grand jury prepared the
public mind in his favor, upon the trial of the indictnimit he instructs
the jury that they may find the facts, and he will say whether the accused is guilty or not.  The jury report the facts; he pronounces the
man guilty; and the public mind, already poisoned by himself for the
purpose, approves the verdict;  atnl  finally, when the victim of his
vengeance would seek redress at the tlands of the Supreme Court, he
is denied the right of a fair trial before that tribunal; the records are
faltsified, and his doom rendered certain by that distinguished court.
On the other hand his friend is presented to the grand jury.  Through
his Circuit Attorney he ascertains the fact, -goes to the grand jury
room, and tells them they cannot find an indictment. If, however, they
do, he bullies the jury upon the trial, compels them to fend a special.
446 
MRP. KNOTTYS ARGUMENT.
verdict; and outrages law, reason, and justice, by pronouncing him not
guilty, in spite of the evidence.
Let no man say this system of tyranny has no existence except in my
imagination.  He has been proven guilty of every fact going to establish
it.  Revert to his dastardly attempt to procure an indictment against
Kitchen, when he had been guilty of no wrong.  See  him follow the
grand jury even to their retirement and insist upon it; think of his
going to the grand jury of Butler county and telling them that Wm.
Henley could not be indicted for revealing the secrets of the grand
Jury; see him in the grand jury room in Stoddard county trying to
shield himself and David G. Hlicks from indictment for playing cards
for whisky; see him upon the trial of that indictment taking the
consciences of the jury into his own hands, and compelling them to
find a verdict to suit himself; see him refusing to sign and allow proper
bills of exceptions, and thus effectually defeating the right of appeal;
see him compelling parties to try their causes before him, or to follow
them upon change of venue to counties so remote as to utterly preclude
a fair or speedy trial; and you will be satisfied that he has deliberately
inaugurated a system of oppression and despotism over his circuit, as
complete, as perfect, and as well planned and fortified at all points, as
any that ever rioted over the fallen freedom of mankind. I know, sir,
it must almost stagger credulity itself, that such a state of afifairs exists
in the midst of an enlightened State, boasting of the purity and efficacy
of its institutions; but, alas! the evidence in this cause proves beyond
a doubt that it is as true as it seems incredible. Whether this foul
blot shall be permitted longer to stain the fair escutcheon of our State
is for you to determine.  It has been exhibited to you in a light by no
means sufficient to expose all its hideous deformity, but strong enough
to enable you to discern its diabolical blackness; and it is with you to
apply the remedy for its obliteration with which the sovereignty of your
State has invested you.
I come now to call your attention to a feature of this case that I cannot contemplate without a thrill of the most intense horror. It has been
reserved till the last because it exhibits the very achmne, the summit
and perfection, of cold-blooded atrocity,-the grand master-piece of a
genius prolific in deeds of iniquity, that should secure to its author
an immortality of infamy. But I feel my incapacity to do justice to the
subject. The horrible picture of depravity, cruelty, and wrong it presents is far beyond my limited powers of expression, if even within the
compass of human language. I know not what passion of the human
soul the dreadful spectacle would soonest excite, if presented in terms
suited to its perfect portrayal; nor would I appeal to anything save
your sense of right and justice. But hear a short and simple story of
wrong and misery, which, if told aright, would melt the very foundation stones of this capitol to tears of pity. I would not repeat the
story of Lucrece,-I would not paint her with the deadly poniard in
her uplifted hand, invoking the vengeance of Rome upon the adulterous Tarquin's head; nor pale in death, with the glittering blade deep in
her pulseless heart. I would not tell you of Virginius, who sheathed
his poisoned dagger in the stainless bosom of his virgin daughter, ere
she should fall a victim to a tyrant's lust. I would not tell you of our
own distinguished countryman who struck down in the street the assassin of his honor and his domestic joys; nor of the approbation with
which an entire nation recently received the verdict that he was guiltless of any crime. I would descend to the humbler walks of life,-I
would tell you of a poor, defenseless widow, left by the ruthless hand of
death, that struck down the husband of her choice in the full bloom of
manhood, with naught to cheer the dreary desolation of her aching
447 
HIGH COURT OF IMPEACHMENT.
heart save the innocent prattle and dimpled smile of a little daughter,
and the miniature of her dead companion in the bright face of her infant boy. I will not linger through the long years of poverty and
wretchedness that marked that helpless family's "short and simple annals." Nor need I tell you how that little girl, like a wild vine without
a dresser, grew up to womanhood rude and unpolished in all the acquirements that adorn the lady of society, but rich in the graces of purity
and virtue characteristic of her sex. I need not tell you how often a
mother's love had led her to weep with her beside a father's grave; how
often a mother's tears bedewed her humble pillow while downy sleep
nestled upon her eyelids; how all the tendrils of a mother's widowed
heart twined about her; nor how the mingled emotions of pride and
hope swelled that mother's bosom when she saw her eldest born, the
daughter of her heart, budding into lovely womanhood, "like the beauteous rosebud bursting with its prisoned sweets." Oh! sir, who can tell
the depth, the strength, the intensity of a mother's love?
"There is noneIn all this cold and hollow world, no fount
Of deep, strong, deathless love, save that within
A mother's heart."
There is no hope like that which thrills through every fibre of a mother's
soul, when her eldest daughter first steps upon  the threshhold of
womanhood.   But, alas! that hope, pure, tender, and unselfish though
it is, must sometimes end in cruel, bitter disappointment.
The demon came when none dreamed of his approach. His eye of
lust gleamed upon the orphan girl in her wild, uncultured beauty; and
his fiendish soul panted for the destruction of her maiden purity, and
longed to banquet upon the luscious sweets of her blooming loveliness.
His vile approaches were repelled with indignant scorn; but brute force,
raging with the fierce fires of fiendish passion, triumphed, an(dl he remniorselessly gloated over the outraged purity of the ruined girl. Ah!
why did not the fragile flower wither in the bud?  Why did she ripen
into the fuill bloom of loveliness to fall before the hurricane's raging
breath? With all her brilliant hopes crushed beneath the feet of beastly violence,-with all the golden dreams of her buoyant, girlish heart
ended in one horrible awakening; with nothing before her but dishonor, misery, and wretchedness; with no avenger but her own frail arm,
in the frenzy of vengeance, she seized a weapon and struck the destroyer dead.  HIer poor, wretched, widowed mother, crazed with fear and
anguish, in obedience to the instincts of a mother's love, assisted in concealing the terrible vengeance of her ruined daughter; and for thiA she
was dragged before the bar of her country. In vain did she with
streamnin,, eyes implore the protection of that tribunal in her extremity;
in vain did the generous, hallowed impulses of a mother's love appeal to
that court for even sympathy. His flinty eye, moistened by no tear of
pity, glanced upon her not merely with indifference,-btft with a heartless cruelty that might well challenge the bloodiest freak of Nero or
Caligula, that court deprived her of her evidence, drove her counsel out
of her cause, condemned her to death, and denied her the last resort, a
fair trial before the Supreme Court! Sir, this is no fancy picture; but
strange, incredible, and horrible as it is, it was a Judge of our own beloved and enlightened State that so thirsted for the blood of a poor,
defenseless widow, guilty of no crime save attempting to conceal a
daughter's-an only daughter's-guilt and shame.  It was a Missouri
Judge that thus trampled under foot every constitutional guaranty of
an impartial trial when claimed by a frail, crazed old woman. Let no
man gainsay this who will read the evidence concerning the trial of
448 
MIR. KNOTT5S ARGUMENINT.
Sarah Buckner, before this respondent, at the November term, 1857, of
the Stoddard Circuit Court. I know, sir, I cannot relate the story of
that trial as it should be told; but I will recapitulate some of the principal points in the evidence.
Upon the examination of the first witness, Mr. Moore tells you the
court asked most all the questions.  Mir. Phelan tells you that "the
Judge upon the trial acted sore as the State's attorney than the State's
attorney himself." The counsel for the prisoner protested against this
course of conduct by the Judge, but to no purpose; lie persisted in it
until the examination of the witness was concluded.  The next witness
introduced was Mr. Grimsley.  He was permitted to detail his testimony
until he came to tell what would tend to exculpate her from any crime,
and there he was stopped by the court, upon its own motion. lie detailed a conversation of the prisoner; he was permitted to tell all that
could possibly criminate her; he was made to tell all that could fix guilt
upon her, and consign her to a dishonored grave; but when he came to
tell that she denied having anything to do with the killing herself,that it was the unassisted vengeance of her daughter upon her ravisher,
and that to save that daughter from an ignominious death she merely
assisted her to conceal the terrible deed,  the mouth of the witness was
sealed by the court.  Does the Circuit Attorney ask such a sanguinary
ruling at the hands of the court?  No, sir; it chills the blood even of
the Circuit Attorney, whilst the Judge does so upon his own motion. In
vain her counsel contend that all the conversation should go to the
jury; in vain they endeavor to show the cruelty and injustice of permitting only such detached portions of her confession as tend to connect her with the awful deed to go to the jury, without the explanation
showilg her entire innocence,-tlihey had as well attempted to soothe
the venomed rage of the deaf adder with the plaintive song of pity:
he was determined that that woman should die, and that no legal barrier should stand between him and his prey.  Mr. Moore tells you he
prepared a bill of exceptions to this ruling of the court, and presented
it to the Judge, but he absolutely refused to sign it. Seeing that the
testimony of Grimsley conflicted with that of the first witness, and fearing that the discrepancy might create some doubt in the minds of the
juIry, he even permitted his anxiety for a conviction to extend so far as
to advise the Circuit Attorney, in open court, to withdraw the testimony
of Grimsley.  This cannot be questioned,-Mr.  Phelan testifies to it
positively. The court adjourned for dinner; and upon meeting for the
afternoon session, the Circuit Attorney moved the court for permission
to withdraw the witness Grimnsley and the testimony he had detailed, in
accordance with the suggestion of the court made before adjournment.
In vain did MIr. Davis and Mr. Phelan object, and claim the right to
cross-examine the witness; in vain  did they represent that it had
wrought its deadly effect upon the minds of the jury, if left unexplained;
in vain did they plead in the name of justice, mercy, and tle  law, that
they should be permitted to obliterate the effect of Grimsley s testimony
by cross-examination,-the testimony had been withdrawn, and, as Mr.
Phelan tells you, the rulings of the court were, like the decrees of the
Miedes and Persians, irrevocable. Mir. Davis prepared a bill of exceptions to this ruling, and presented it to the court; but, determined that
the prisoner should have no chance of reversal, if convicted, he refused
to sign it. The respondent has asked, if he did these things, why do
not the bills of exceptions show it?  Mr. Davis and Mr. Moore answer
the question. They tell you he refused to sign the bills when presented.
When the Circuit Attorney came to argue the case to the jury, considering the testimony of Grimsley withdrawn, he never alluded to it
in his speech. You remember, when Mr. Phelan told you this how the
29
449 
tIIGlI COURT OF IMPEACHMENT.
respondent sprang to his feet, and with what eagerness hlie demanded a
writ of attachment for John R. Wcodsides, the Circuit Attorney.  IHe
felt that his conduct in this case would daiurt  him eternally in the estimationl of every honest man, and, like a drowning man clutching at a
straw, he wildly hoped that Woodsides would say something different,something that would excite at least a shade of doubt in his favor.  A
special messenger was dispatched.  Mr.'Woodsides was brought here,
and testified that the testimony of Grimsley W,3 withdrawn; that he
regarded it as withdrawn when he argued the case, and never spoke of
it at all.  His evidence in no particular conflicted with the testimony
offered by the State.
Mr. Davis arose to address the jury, and in the course of his remarks, as
he himself tells you, and as MIr. Bedford also states, proceeded to suppose
a case of a poor, defenseless widow, whose only daughter-the jewel of
her soul, the idol of her heart, the object around which all the strong tendrils of her maternal affection fondly clung, just budding into womanhood, with her pure bosom elate with hope and joy-had been ruined
by the brutal violence of a fiend in human shape.  But he is abruptly
stopped by the Judge.  Perhaps that appeal may  touch some tender
chord of sympathy in some bosom not sealed to all the nobler emotions
of our nature,-perhaps it may moisten the eye of some juror in that
box with the tear of pity. So he is stopped, and ordered not to suppose
any such case, but confine himself to the facts as proven.  Mr. Davis
again proceeded, and presently sought to enforce some argument by the
use of an illustration..gain he is interrupted by the Judge, who tells
him he shall confine himself to the facts proven, and not make use of
such illustrations.  Again Mr. Davis attempts to suppose a case, and
again he is interrupted by the court.  " M'ay it please the court," says
he, "shall I not be permitted to suppose a case by way of illustration?"
"No, sir," replied the Judge, "you shall confine yourself to the facts
proven."  "Then, sir," said MIr. Davis, " I will abandon the case, if my
client is to be Je5'eyi-rl in that manner."
You all know the history of the sanguinary career of the infamous
Jeffreys.  His name is still the synonym for cruelty, oppression, and
judicial crime.  But, sir, that long career of unbridled wrong and outrage that secured to him the extreme apex of ignlolmliniouis fame, affords
no single instance of heartless, cold-blooded cruelty,  and higih-hartiled
judicial despotism~, equal to this conduct of the respondent.
.ir. Davis, bullied, brow-beaten, and hamperedl by the court, is conmpelled to abandon the cause, and leave his poor old client to thle mercy
of a tyrannical Judge,-" in the jaws of the dragon."
Mr. Phelan then endeavored to address the jury. In the course of
his argument he deemed it proper to impress upon the minds of the
jury the fact that Grimsley's testimony had beei- withdrawn, and that
they should not consider it as evidence, hoping thus to eradicate the impression that the testimony had made, as he was niot permitted to do so
by a cross-examtina,tion.  The Judge told him to stop, and sa, " I hiave
told you that testimony has been withdrawn, and you shall not speak
of it."  " I merely wished, if the court please, to correct any impiression
that testimony may have left upon tlhe minds of the jury," said Pthelan.  "You shall not speak of it, sir, it has been vwithdrawn." said the
Judge: and thlreatened himr with a penalty worse than fine or imprisonment if he should allude to it again.
There can be no doubt of these facts, sir. DIviis, Moore, Phielan, Bedford, Thornburg, and others have sworn to them.  They are as clear as
the sunbeam at noonday.  But why, let me inquire in the name of
mercy, should this poor old woman  have been subjected to such unheard of persecution?  Thie respondent does not even claim the slight
450 
MIR. KNOT'~TS ARGUMENT.
extenuation her guilt might have afforded. l He turned to me the other
day in the presence of this Court, and said with a sneer that 1 would
deserve to be hung myself if I should manage a case as that was managed: that she was convicted of a capital offense, not because she was
guilty, but because her counsel were too ignorant to know their duties.
But, sir, the injustice and cruelty of this respondent were not confined
merely to the trial. After it had been concluded,-after a conviction
had been procured through the extraordinary exertions of the court,Mlr. Phelan filed a motion in arrest of judgment, setting forth among
other grounds that the uncorroborated testimony of one witness was not
sufficient to w arrant a conviction for a capital offense.  Now. why did
Phelan insert this reason in the motion? Because the testimony of
Grimslev had been withdrawn, which left the case entirely upon the
testimony of young Seabaugh, the only other witness introduced by the
State,-showing that the understanding of Phelan was, that Grimsley's
testimony had been as effectually excluded from the jury as if it had
never been detailed. When this reason was inserted in the motion in
arrest, it struck the respondent that there was force and validity in it;
and it is evident, sir, that he yet thinks it is valid. So, when Phelan
presentedl a bill of exceptions for his signature, he refused to sign it
until he had with his own hand inserted a statement of Giimsley's testimony, as though it had never been withdrawn. lie feared the force of
the reeason urgedl by Mir. Phelan in arrest; he feared to have his action
a second time reviewed by the Supreme Court,-for you will perceive by
this record that he h,id been already reversed in this very case,-and he
determined to make the Supreme Court believe that the case rested
upon the testimonvy of at least two witnesses.
Now, sir, look upon this conduct.  The testimony of Grimsley is withdrawn upon his own suggestion; he refuses the prisoner tihe right to
cross-ex'amine him; he gags her counsel when they attempt even to
advert to it to obliterate any impression it may have left upon the
minds of the juriy; and finally puts the climax to his cruelty, injustice,
and oppression by totally refusing to allow and sign her bill of exceptions, until it is   made to show that this testimony went to the jury without
a murmur or objection of any kind, and had never been withdrawn.
Sir, if the ainnals of humran crime afford a darker and more damning
case than this, oh! in the name of humanity, I pray never to look upon
its horrid features. A court of justice thirsting for the blood of a poor,
defenseless old woman!-pursuing her with the cruel lash of persecution
even to conviction and death! Mfy God! what a spectacle for freemer
to contemplate!
The respondent has frequently during the course of this trial endeavored to excite your pity; nor have I on any such occasion sought to
repress the slightest emotion of that Godlike passion in your bosoms.  It
is a sentiment so free from any tinge of selfishness, the 1human heart is
always purer and better for its entertainment. It is the golden chain
that binds a f-llen world to the throne of a pardoning iMlaker, and I dlight to see its precious links forever brightly burnished.  And, sir, it
occurs to me, if I were called upon to draw a picture of this generous
emotion of the human soul,-if it devolved upon me to represent Pity
in her most striking attitude, I would paint her  ciinig to the robes of'
Justice and pointing to the corse of murdered Innocence dangling at
thei  gibet's arm. and with streaming eyes imploring her avenging, sister
to tear from the judicial tyrant, who grimly smiles upon the lifeless victim of his cruelty, the ermine he has smeared with humian gore. and
stamp upon his name the unfading impress of eternal infamy.
Sir, I can speak no longer upon this case. I have imperfectly, but to
the exte.nt of my humble ability, discharged the duty devolving luponi
451 
IHIGII COURT OF IMPEACHMENT.
me; and now the responsibility of deciding this important cause according to law and justice is with you.  It is neither with myself nori those
whlo sent me here.  They have impeached the respondent at your bar of
a ruthless violation of almost every right held sacred by the citizen and
guarantied by the constitution and laws of our State.  They have accused
him of wantonly trampling under his feet, without authority of law, the
inalienable right of personal liberty.  They have accused him of assassinating private character, in repeated instances, whilst upon the bench.
They hasve accused him of descending from the bench and participating
in the litigation transpiring in his courts, in violation of the known rules
of law and the requirements of common  decency.   They have accused
him of depriving a citizen of the privilege of the writ of habeas corpus,
and again of abusing the privilege of that writ by illegally turning loose
,upon the country tried and convicted felons, to go forth in the perpetration of every variety of villainy and crime with which it is possible for a
civilized community to be cursed.  They have accused him of invading
the privacy of the grand jury room, and using the influence of his position ill procuring indictments where none should have been preferred,
and in screening himself and his favorite friends from justly deserved
ti,ccusation and punishment.'T'liey have accused him of the most alarm$ag and unheard of innovations upon the trial by jury, calculated to
deprive the citizen entirely of the inestimable right to that ancient and
invaluable mnode of trial.  They have accused him of depriving the citizen of the right to appeal to the Supreme Court, and of attempting
thereby to establish his own supremacy in the courts over which he
presides.  They have accused him of every variety of oppression, osutrage,
andl cruelty that infernal malice could conceive, or human depravity exe,ute.  And having proven all, even to the miinutest particular, the darkii
and damning catalogue of crimes they have alleged against hlim, they
demnand that you shall exercise the great and plenary powers with which
you have been endowed by the framers of our government, in vindicating the character of our judiciary, and purifyingi that essential d(epartment of the State from the foul pollution his diversified coirruption has
brought upon it.  Were the respondent innocent, no man could rejoice
nore at his honorable acquittal than myself; but guilty, hlie should not
only be hurled fromnt his high position, but the evidence of his condenination be stamped in characters of fire upon his brow, that he might go
forth known, detested, and despised by all, as a traitor who has polluted
the purity of our institutions, and brought disgrace, obloquy, and evil
of the darkest dye upon the bright escutcheon of our beloved State.
The argument of the case being concluded, SENATOR PARSONS offered
the following:
resolved, That this Court will at two o'clock this afternoon hold a private
consultation as to what judgment ought to be entered in this cause.
SENATOR NEWLAND.  It is now eleven o'clock, and we can spend an
hour in session before the hour of adjournment arrives. I move to insert "forthwith," in lieu of "three o'clock."
SENATOR AVATKINS.  I would rather have an hour or two for reflection.
We should not be hasty in so important a matter as this is. I therefore
hope the proposition of the Senator from Cole (Mr. Parsons) will
prevail.
SENATOR BIcFERRAN.  I would ask the mnover of the resolution to
adjourn to withdraw it, that I may offer this as a substitute:
Resolved, That the Senate do now proceed to vote, without debate, on each
,.article, beginning at the first and proceeding consecutively through to the last,
after which a judgment of the Senate upon the whole case shall be rendered.
4!D' 2 
HtIGIH COURT OF IMPEACIHMENT.
Alr. PaRESIDENT.  WAVill the Senator (fr. Parsons) withdraw his mrotioni?
SEN ATOR PARSOsS.  I cannot withdraw it.  I insist upon mny motion'
sir.
SENATOR M,cFERRm.  I move my resolution as a substitute for tlhe
original resolution and amendment.
SENAiTOR Fox.  I do not feel prepared to go immediately into voting
upon the case, and shall vote in the negative when the question comes
up.  I have read some of the printed testimony I got last evening, and
I mnost certainly should want to peruse the balance of that testimony,
and refresh my recollection of that portion that has been detailed far
back.  I amni not prepared to adopt the substitute.
SENATOR O' EIL.  I move that the Court adjourn until two o'clock.
Carried.
The Court then adjourned.
EVE-NING SESSION.
WVEDNESDAY, June 22, 1859.
Court met pursuant to atdjournment.
The man.agers attendcled.
The question being upon agreeing to the substitute offered by Senator Mcerran,
SEN ATOR R-Ai-s said: Mr. President, before that question is put, I
would remark that the respondent is not here.  According to my view,
he should have a right to address this Court further, if he choose to do
so.  I do not know whetheri hlie desires to do so or not.  Our rules provide that " in all cases not provided for in the foregoing rules, the rules
adopte(d for the government of the present Senate  shall apply."  Our
rules provide that persons having spoken once, may speak again. I
wvould like to hear from the respondent, if he has anything further to say.
In regard to this resolution, I take the liberty of stating that I shall
vote to give the greatest latitude for investigation.  I am, for one, disposed, sir, not to act prematurely in a matter so grave and so important
as is the present.  AWe have now heard, sir, from both sides,-from  the
representatives of the people, sent here by the tiouse of Representatives a prosecutors, and we have heard from the accused.   I should be
pleased to hear remarks coninig from any Senator in regard to this matter; and I for one shall not vote for a resolution that will compel us to
act imnmediately, without debate.  I shall give 11no vote that will trammel
any Senator here.  If there are any desires upon the part ofany Senator to show why he pursued a certain course, or if he has any information more than I or any other Senator has relative to the case, I would
like to avail myself of his knowlecldge. I am as anxious as any Senator
upon this floor to get through with this case and go home; bl)ut I shall
vote on all occEsions to give the greatest latitude, if Senators want  to
discuss tllhis matter.
SENATOR SC'OTT.  I shall support that motion, sir, for the reason  SENATOR AI'cFERmAN.  WAVll the gentleman  (Mir. Scott) allow me  to
w;.thdraw that resolution and offer this one?
esoved, TIhat tlihe Senate will nowt proceed to pronounce jiludgreint in the
case of Albert Ja          ukson, Jodfe of the Fifteenth Ju(licial Circuit  in  tle State  f'
453 
HIGH COURT OF ILNPEACIIMENT.
Missouri; and that in taking the judgnent of the Senate upon  the articles of
impeach.nent now depending against Albert Jackson, the President of the Senate shall state the question to be, upon easch article, " Is the respondent, Albert
Jackson, ouilty or not guilty, as charged in the       article?"  After which the
Secretary sihall call the roll, and each Senator in his place shall anslver "guilty"
or "not guiilty."
SENATOR O'NEIL.  IS it not necessary that each specifcation should be
voted on 9
SE,NATOlR,IcFERRAN.  Since introducing my first resolution, I have
been examining some precedents, the first I have looked at in this case
and would not now have done it but from the fact of a secret session
having been proposed.  In the case of the United States vs. Chase, on
articles of impeachment tried by the Senate of the United States,
the vote was taken, as is proposed to be taken in that resolution, upon
each article separately, and not on the specifications at all.
SEXATOR PARSON-S.  Were there any specifications?
SEN ATO)R McFERRAN.  Yes; numbers of them.  In the Chase case the
Senate did not go into secret session to make up a verdict, nor were the
merits of the case discussed at all.  The same rule was observed in the
case of the United States,.s. Peck.
SENATOR SCOTT.  I was goimg to remark, I was in fa[tor of proceeding
in this case without discussion, and openly before the world.  If we are
to go into a discussion among ourselves in regard to this matter, it may
be proper and prudent for us to have a secret session.  AVhat  can be
the object of any member discussing any point in any article of the impeachment7 unless it be that he has formed his own opinion, andl feels
so deep an interest in the matter that he desires to iak  proselytes of
others to thliose opinions?:So necessity can arise for it, unless upon a
presumption of this kind.  I have mine; and I presumie every Senator
upon this floor has his opinion upon this subject.  Perhaps I could not
if I desired, change the opinion of a single Senator; and I would not if
I could. I vote for myself. It is a duty I owe to my country to vote
according to what I conceive to be right and justice in this case, uninfluenced by any, and without attempting to influence any to vote as I
do, for the purpose of carrying the verdict this way or that way.  By
pursuing this course, sir, we discharge our duty, not secretly, but publicly, in the face of the world, and conscientiously in regard to ourselves
without being subjected to the influence of this mnan's opinion, or that
man's opinion, as he may desire to express it here.  I think  I should
have preferred the former resolution, but I shall vote for this one.  I
do not, however, conceive it necessary to repeat the (lquestion to each
member as his name is called.
SENATOR PARSOXS.  It would not be proper for me  to retain my seat.
.~Ir. President, and say nothing, after the remarks that have fallen from
the lips of the Senator from Buchanan, (Mir. Scott.)  tie intimates the
object of the proposition introduced by myself was to give some an opportunity of influencing others.  I most emphatically disclaimn any such
object or intent; and I am sure I can convince this Senate that the
gentleman from Buchanan is the only one who could possibly have put
upon it such a construction.  Sir, I will call his attention to the factif he was ever so low in the law as I have been, for I have plead before
a Justice of the Peace, where I would address a jury in a cause involving five dollars-that in such cases jurymen are permitted to retire and
consult together as to what they would do in the premises; and no one
ever supposed the object or intent of the law was, that one juryman
should be permitted to control the balance.  Again, sir, in the Supreme
Court of this State, in which I have had the honor to have some experience in practice, I have never yet known them  to pronounce  an
404 
IIIGII COURT OF IMPEACHMENT.
opinion in a cause without going into a respectful deliberation.  I offered that resolution out of the respect whicii I thought this Court owed
to the people of the State, and out of respect to thie rights of this respondent.  Why, sir, if it was a five-dollar case before the Circuit Court
of our State, they would not jump at it in a moment, and before the
sound of the counsel's voice had disappeared from the walls.  I did not
offer the resolve for the purpose of getting up debate, but simply to
give Senators time to investigate this matter  to look over the immense
amount of authorities that have been brou,ght into requisition; and to
satisfv thieniselves what they ought to do in the premises.  I confess,
AIr. President, I ha.ve given careful attention to this case; but there are
two or thiiree articles about which my mind is not made up. Although
I have labored to take notes of this testimony, and to examine the
authorities  in order to be ready to vote when the case wvas submitted, I
supposed as a matter of course we would be entitled to some delibera,
tion, and not depr ived of the same rights which the humblest jury in
the land is entitled to.  I presumne the object of this jtudgment is to
render a t"uI verdict between the State of ~:issouri and the accused.
A Senator upon my right sayes lihe wishes to examine this matter further.
Perhaps, theie are other Senators upon this floor wlho affoibrd additional
arguments in favor of my proposition.
The gentleman speaks about a secret session.  Does not your grand
jury secretly deliberate?  Do not your petit jurors retire to a room,
placed under the charge of the Sheriff, while they deliberate upon the
matter under their consideration?  Does not the Supreme Court deliberate in privacy before rendering a verdict?  Did not the Senate of the
United States, in the impeachment case of Chase, retire from the hall
in which the trial had( been progressing to their council cliamber, and
in private deliberate upon the questions of law presented in the case?
It does seem to me, in view of these facts, and in view of the rights of the
parties concerned, we are entitled to the privilege of giving this matter a
calme and respectful consideration.
SEaNAro  SCOTT.  I only desire, Mr. President, to reply to one position
taken by the Senator.  le regards this Senate as a jury sitting here to
try a cause in which they must agree in their verdict, and that without
consultationr. it would be impossible to know whether they agreed or
not.  SNow I will admit, sir, that were  we a jury, or like a jury had to
agree in our verdict, without consultation it would be impossible to
know whether we agreed or not.  Whe.n a jury retire to consult about
making up a verdict, it is impossible for them to arrive at the unanimi ty requisite unless they do hold a consultation. Grand juries, however,
do it, not for the mere  purpose of consultation, but because they
are made a secret tribunal, and required by law to hold their ses sions in secret.  It is not necessary that we agree. Each one must, in
the exercise of his own judgment, and under the dictates of his con science, say whether he believes the defendant guilty or not guilty; and
it is not necessary we should consult about and ag,ree amuong ourselves
what kind of verdict we will render in this case. I had no reference to
the resolution introduced by the Senator.  I could conceive of noobject
any one could have in view in holding a secret consultation in regard to
this matter, unless it was to give members an opportunity, by expressing
their opinions, to influence the opinions of others, and that the case
might be determined differently from what it would be if Senators were
to vote their independent opinions, without hearing the opinions of
others expressed.  This is the position I took, and I think it is a cor  rect one.
Sr.ENATO  CnU3RCIILL.  For one, Mir. President, I do not wish to act
hastily upon this subject. This is a case of vast irnmportance, not only to
455 
HIGH COURT OF IMPEACIIHMENT.
the respondent, but to the State. We have applied ourselves most in  dustriously in the examination of this case, having since its commence  ment met here at eight o'clock in the mnorning and remained until noon,
and met again at three and remained until five o'clock in the afternoon;
and we should not precipitately act upon it now.  A portion of the print  ed evidence has been put upon my table since I entered the chamber,
and I should like to have a few hours to examine it. I do not think it
will do any Senator harm to give one night's cool reflection to this sub ject.  Like the Senator from Cole (Mr. Parsons) and the Senator from
Jasper, (Mr. Rains,) I would not take an immediate vote on the case.
I shall vote against the proposition of the Senator from  Daviess, (Mr.
'ilcFerran.)
SENATOR McFERRAN.  I desire to state, that, if the Senators wish to
have time to investigate the evidence or law governing this case, I have
no objection, after the resolution is passed, to adjourn until to-morrow
morning, to give them an opportunity for that purpose.  WVe can then
come to a direct vote upon the matter before us.
SE-NATOR Jo-,Es.  Without debate?
SENATOR McFERx.N  Yes, without debate.  I am  prepared to act
now.
SEATOR RAi\-S.  Since the Senator from Daviess (Mr.,cFeerran) has
changed his proposition, and there is a reason for the adoption of the
resolution he now offers, I feel it necessary to state a further objection
I have to that resolution, which I did not think it necessary to state be fore.  I want a little time to examine some authorities and testimony.
I am now fir mly of the opinion that it is our duty to vote upon each speci fication in place of each article. Now, I find in certain articles eight or
ten different specifications. I am prepared to say that on some of these
specifications I shall vote one way, and upon other specifications I shall
vote differently.  Some of them the testimony may fully sustain, andc
others it may fall far short of so doing.
SENATOa GOODLETr.  I wish to say one word in reply to the gentleman
from Jasper.  I understand that we vote upon these articles pretty
much as a jury does on a case submitted to them.  For instance, an indictment is submitted to) a jury. and the verdict of that jury is, whether
the man is fount(  guiltv on the inlictmn(nt.  The me,re fitct that it goes
on to sa,y the prisoner dii not have the fear of Go4l in his eyes, and was
instig.ted by the devil, does not force a juryman to believe or disbelieve
it.  These sp)ecifieations are like different counts in an indictment.  If
any one specification in any one of these articles is true, and the Senate
so regadcls it, that is sufficient in itself, as I conceive, to sustain the article itself
SENATOR PtIxs.  I would like to ask the Senator from Johnson if he
does not believe it possible that this Judge may be guilty of some one of
these specifications, and not guilty under the.article?
SENATOR GOODLETT.  That may be so.  The specifications may be all
true, and yet not sustain the charge of the article, and herein lies the
folly of voting upon the specifications.
SE-NATOR RAi,-S.  I look upon it as a very different thing from a jury
trial. When a jury, in deliberation as to the guilt or innocence of a person before them, once make up their verdict it is final.  It does not go
upon the records-it does not publish to the world any reasons.  Quite
different with us,-here is a record.  Upon each specification I want to
vote intelligibly and undclerstandin-rly, so thit the country will see what
we consider to be criminal and what not criminal.
SENATORGOaODLEr~T.  IS that resolution subject to amendment?
Mr. PaESIDENT.  It is about as far as it can go inll thle way of amendmenits already.
456 
HIGII COURT OF IMPEACHMENT.
SENATOR GOODLETT. I only wish to amend it in order to cut off debate.
I well see now, firom the disposition already manifested, that there will
be a heavy discussion for three or four days if the proposition prevails
to discuss the case. I have not the least doubt but that every member
of this body has already made up his mind from the law read and the
evidence brought before us.  Nevertheless, if any additional information
can be obtained, I am willing to hunt for it; but I do think it useless to
suffer debate from one day'> end to another.
SExATOrn PASONS.  Until the judgment is rendered, I suppose all proceedings that take place are part of the trial. I do not see the respondent in his place, and I doubt the propriety of taking any further steps
in the case without his presence, or at least without having informed
him of our proceedings.  The respondent may be under the impression
that we have gone into a private consultation about this matter, from
what took place in the forenoon. I hold that he has a right during this
discussion to make any objection, amendment, or alteration to any proposition that comes up that he may see fit.
SENATOR GOODLETT.  This is a new idea, that a party has a right to go
before a jury after it has retired and make suggestions to it.
SEN-TOR ROBINSON\.  I have an objection to that resolution.  There are
specifications in all these articles upon which I presume every member
of the Senate will vote in the affirmative, and yet, taken by themselves,
they are harmless. Here in article one is specification three, which
simply charges that he refused to hear counsel in a certain case. In
what position are we placed in voting upon this article affirmatively or
negatively as a whole, contrary to the evidence? I hold there are specifications that have been and others that have not been established. It
is the specifications that make out an article, and not simply the allegation.  If there is no necessity for voting on these specifications, there is
no necessity for having them.  If we vote upon anything at all, let us
vote upon the proposition, and not upon a general declaration.  Yet, sir,
I have little practical knowledge of any proceedings of this kind; but it
seems to me the proposition of the Senator is an absurdity. Ile proposes to vote upon the whole article, and yet not touch one of the propositions contained in it.  If the specifications were directed towards one
point, the case would be different; but we have various charges under
the same general affirmation.  We may regard some of the charges as
true, and some of them as false; yet if we vote in the affi.rmative upon
the article itself, we vote upon the truth of the specifications, when the
evidence may be insufficient on some of them.  I shall vote against the
resolution.
The substitute offered by Senator {IcFerran was agreed to by the following vote:
AYEs-Messrs. Brown, Coleman, Frazier, Gooclldett, Gullett, Iallliburton, Harris,
Jedgpeth, Horner, Hyer, Jones, McFarland,  MaeFerran, Morris, Newland,
O'Neil, Richardson, Scott, Thompson, Vernon, Watkins, Wilson, Tood, and
Wright-24.
NoEs —Messrs. Byrne, Churchill, Fox, Mellvaine, Parsons, Peyton, Rains,
and Robinson-S8.
Ab,sent-Mr. Johnson.
SEN-ATOP  CHURCHILL.  I would like the Senator to nmake  an explanation.  Suppose the respondent is guilty on some of the specifications
and innocent on others?
SENATOR i!cFEaRRN.  In answer to the Senator, I would refer again
to this authority,-the trial of the impeachment of Judge Chase.  The
fourth article of that case contained five specifications, but the votewas
taken upon the entire article, and not upon the specifications.  Of
45T 
HIGH COURT OF IMPEACHMENT.
course Senators voting on the article believed there had or had not been
enough proven under it to authorize the finding of a verdict of guilty.
As in the counts of an indictment, some of the specifications may have
been good and some bad; or they may have been all good or all bad.
Now, we are setting here both as judges of fact and law, and I presume
that as a body we pass upon the sufficiency of the articles and upon the
proof to sustain them. One of the specifications may be proven to be
true, and it may be sufficient to sustain the charge; another specification, although proven, may be insufficient to warrant the finding of an
article against the accused.  Now,  I would say to the Senator from
Boone, (Mr. Robinson,) that when he characterizedl the voting upon the
articles an absurdity, he was in the teeth of authority, In the respective cases of the United States vs. Peck and Chase it was never proposed to vote upon the specifications.   The article includes the specification in the same mianner the greater includes the less;  and if we find
that the article is supported by the proof of one or more specifications,
we are to pass upon its sufficiency.
SEXATOR R.AINS moved to amend the resolution by striking out the
word "article" where it occurred in the question to be proposed by the
President, and insert in lieu thereof the word "specification; " which
amendment was lost by the following vote:
AYEs-Iefessl3. Chuirchill, Fox, Harris, MIcIlvaine, Peyton, Rains, and Pobinson-7.
iNOES —Alessrs. Brown, Byrne, Coleman, Frazier, Goodlett, Gullett, Halliburton,
IHegegpeth,  Ilorner, Hyer, Jones, McFarland,  MeFerran, Morris, Newland,
O'Neil, Parsons, Richardson, Scott, Thompson, Vernon, Watkins, Wilson, Wood,
and WVriglit-25.
Abseit-Mr. Johnson.
The question being upon the adoption of the resolution, it was adopted by the following vote:
AYEs-Miessrs. Brown, Byrne, Coleman, Frazier, Goodlett, Gullett, Halliburton, Harris, Hedgpeth, Horner,  Iyer, Jones, MeFarland, MeFerran, Morris,
Newland, O'Neil, Richardson, Scott, Thomrnpson, Vernon, Watkinis, Wilson,
Wood, and Wright-25.
NoEs-Messrs. Churchill, Fox, Mcilvaine, Parsons, Peyton, Rails, and  Robinson-7.
Ab~'t —MSr. Johnson.
SENATOR CHURCHILL.  Since we have agreed upon the order of trying
this case, I move that the Senate adjourn until 10 o'clock to-morrow
morning
SENATOR GOODLETT. In order to relieve the Senator, I move we commence at the bottom of the roll and call upward.
SENATOR CHUIPCHILL. I do not flinch at any responsibility, but at the
same time I think a little reflection will hurt no one. -
SENATOR NEWLA-ND.  It strikes me that if we adjourn until to-morrow
morning to examine the testimony already printed, the same reason
would apply until all the testimony in the case was printed and examined. I think it unjust for Senators to adjourn to examine testimony
that has been offered here on behalf of the State, without the possible
prospect of getting the testimony printed that has been introduced on
behalf of the respondent. I do not think we can accomplish anything
by adjourning, and consequently I call for the ayes and noes on the
motion.
SENATOR RAIXS.  I want to remind Senators of the courtesy they have
been extending to each other during the pendency of bills in this body.
Whenever a member but requested time to examine a bill, it has been
458 
HIGH COURT OF IMPEACHMENT.
granted.  But here it is proposed to compel us to vote on a measure,
not of minor importance, but one in which many interests and rights
are involved, though we ask a little further time to examine it.  Common courtesy demands that the request be complied with.
SENATOR O'NEIL.  I can safely say the same thing my  colleague has
heretofore expressed. There are questions here upon which I am not
prepared to vote; but I will say, sir, that if compelled to vote, wherever
I have a doubt upon an article, that doubt shall be in favor of the respondent.  This sir, we owe the respondent, and this is the usual mode
of proceeding.  In addition to this, the gentleman will please to recollect that by adjourning until to-morrow morning, as has been remarked
by one Senator, no opportunity will be given us of examining the testimony of the respondent, and so we shall not be in a better position to
decide upon the evidence of the case than we are at the present time.
It will be to the disadvantage of the respondent if we adcljourni until tomorrow mornine.
SENATOR GooDiETT.  r. President, I have been here from the come
mencement of this trial to the present moment.   I have heard every
particle of the evidence. andl all the arguments on both sides of the
case.  Knowing as I did, that one of the memibers of my family was
lying on a bed oiL sickness during the time, I have staid here and attended promptly to my duties, though constantly suffering in mind on
their account.  And am I now to be denied the privilege of going home
and attending to my family because some Senator has been too negligent to attend to the progress of the trial?  There is no man more disposed to do justice to this case than myself, sir. Let those Senators
who are not prepared to vote be excused until to-morrow morning, but
let those who are ready to vote upon this question, vote now, so they
can go home to-morrow.  I feel myself prepared to vote upon each and
every allegation in these articles of impeachment; and I do hope, sir,
that no adjournment will take place to deprive us who are so anxious
to go home of the privilege of so doing.
The motion to adjourn was negatived by the following vote:
AYEs-Messrs. Byrne, Churchill,  Coleman,  Fox,  llalliburton, Hedgpeth,
IHyer, llcIlvaine, Parsons, Peyton, Rains, Robinson, and Watklhls-13.
NoEs-Messrs. Brown, Frazier, Goodlett, Gulleft, Harris, Horner,  Jones,
McFarland, McFerran, Morris, Newland, 0'Neil, Richardson, Scott, Thlompson,
Vernon. Wilson, Wood, anid Wright-19.
Abl.selt —Mr. Johnson.
SENATOR PAnSONS.!Ir. President, I do not think it is right for us to
proceed without the respondent being present.
SENATOR W-'Tm'INS.  I think the proper course would be to send a
messenger to inform him that he can come or not, just as he chooses.
SENATOR JONES.  I don't think there is any necessity for that.  The
respondent is aware of his right to be present. 
SENATOR BRO'WxN.  I think it due the Judge that he should have
notice that we are about to pass judgment upon hinm.
SENATOR PARSONS moved as follows:
The respondent not being in his seat-Ordered, That the Sergeant-at-Arms
be required to inform the respondent that we are now ready to pass judgment
upon the articles of impeachmlent exhibited against him in this cause.
SENATOR SCOTT.  I do not think the respondent has any seat in this
bar.  If he chooses to come and set down, I for one have no objection.
SENATOR RAIXS.  There is a seat assigned him by resolution.
SENATOR SCOTT. I suppose if the respondent is at home, the Sergeantat-Arms, under that resolution, would be compelled to go to him.
459 
HIGI COURT OF IMPEACHMENT.
SEXATOR JONES.  I do not suppose, sir, that the respondent considers
it proper to be present when  the Senate is passing sentence upon him.
His non-attendance may result from motives of delicacy.  I apprehend,
sir, that under similar circumstance most men not altogether devoid of
sensibility would absent themselves.
The motion was then rejected by the following vote:
AYEs —Mlessrs. Brown,  Churchill,  Fox,  Gullett, Iledgpeth, lMcFarland,
Parsons, Peyton, Rains, Richardson, Robinson, and Watkins-12.
XOEs-Messrs. Byrne,  Coleman, Frazier,  Goodlett, Hialliburtor, Harris,
Horner, Hyer, Jones, McFerran, Mcllvaine, Morris, Newland, O'Neil, Scott,
Thompson, Vernon, Wilson, Wood, and Wright-20.
Absent-Mr. Johnson.
ARTICLE I. was then read; and the question prescribed by the resolution having been announced by the President, and the roll having been
called, there appeared as voting'guilty:"
3lessrs. Brown, Byrne, Churchill, Frazier, Hialliburton, horner, Iyer, McFarland, MIeFerran, Mcllvaine, O'Neil, Parsons, Thompson, Vernon, Watkins,
and WAVright-16.
There appeared as voting " not guilty:"
Miessrs. Coleman, Fox, Goodlett, Gullett, Harris, Hedgpeth, Jones, Mlorris,
Newland, Peyton, Rains, Richardson, Robinson, Scott, Wilson, and Wood-16.
Absent-AMr. Johnson.
Two-thirds of the Senators present not having voted "guilty," the
President of the Senate declared Albert Jackson  acquitted of the
charges in the first article.
On ARTICLE II., those voting "guilty" were:
Miessrs. Brown, Byrne, Frazier, Goodlett, Horner, lyer, MAcFarland, McFerran,
]Mcllvaine, Thompson, Vernon, and Wright-12.
Those voting " not guilty" were:
Mtessrs. Churchill, Coleman, Fox, Gullett, tlalliburton, Harris, Iledlgpeth,
Jones, Morris, Newvland, O'Neil, Parsons, Peyton, Rains, Richardson, Robinson,
Scott, Watkins, Wilson, acid Wood-20.
Ab.sentt-ir. Johnson.
And the respondent was declared acquitted of the charges in said
article.
On ARTICLE III., those voting "guilty" were:
Messrs. Brown, Byrne Frazier, Goodlett, Ilalliburtonl, Horner, lyer, MeFarland, McFerran,  IelIlvaine, O'Neil, Parsons, Richardson, Thompson, Vernon,
and WVatkins-16. 
Those voting' not guilty" were:
MIessrs. Churchill, Coleman, Fox, Gullett, Harris, HIledgpeth, Jones, Mvorris,
Newvland, Peyton, Rains, Robinson, Scott, Wilson, Wood, and Wright-16.
Absent —Ir. Johnson.
And the respondent was declared acquitted of the charges inl said
article.
On AnRTICLE IV., those voting "guilty" were:
leessrs. Goodlett, HIalliburton, M\cFarland, MIFerran, O'Neil, Parsons, Richardson, Thompson, and Watkins-9.
460 
HIGH COURT OF IMPEACItMENT.
Those voting "not guilty" were:
Messrs. Brown, Byrne, Churchill, Coleman, Fox, Frazier, Gullett, Harris,
Hedgpeth, HIorner, Hyer, Jones, lMclivainie, Morris, Newland, Peyton, Rains,
Robinson, Scott, Vernon, Wilson, Wood, and Wright-23.
Absent-M-r. Johnson.
And the respondent was declared acquitted of the charges in said
article.
On ARTICLE V., those voting "guilty" were:
Messrs. Hyer and Thompson-2.
Those voting "not guilty" were:
lessrs. Brown, Byrne, Churchill, Coleman, Fox, Frazier, Goodlett, Gullett,
Halliburton, Harris,!{edgpeth, Hormer, Jones, McFarland, McFerran, Mcelvaine, Morris, Nze-wiaid, O'Neil, Parsons, Peyton, Rainls, Richardson, Robinson,
Scott, Vernon, Watlins, WVilsoln, Wood, and Wright-30.
A.b.s~t —Ir. Johnson.
And the respondent was declared acquitted of the charges in said
article.
On ARTICLE: VI., those voting "guilty" were:
Metsrs. Byrne, Churchill, Frazier, Goodlett, Halliburton, Horner, Hyer, McFarland, McFerran, Mcllvaine, Parsons, Richardson, Thompson, Vernon, Watkins, and Wright-16.
Those voting " not guilty" were:
Messrs. Brown, Coleman, Fox, Gullett, Harris, HIedgpeth, Jones, Morris,
N'ewland, O'Neil, Peyton, Rains, Robinson, Scott, Wilson, and Wood-16.
Absent-Mr. Johnson.
And the respondent was declared acquitted of the charges in said
article.
On AaTICLE VII., those voting "guilty" were:
Messrs. Brown, Byrne, Frazier, Goodlett, Halliburton, Horner, Hyer, McFar land, McFerran, Mcllvaine, O'Neil, Parsons, Richardson, Thompson, Vernon,
Watkins, and Wright-17.
Those voting "not guilty" were:
Messrs. Churchill, Coleman, Fox, Gullett, Harris, Hedgpeth, Jones, Morris,
Newland, Peyton, Rains, Robinson, Scott, Wilson, and Wood-15.
Absent-Mr. Johnson.
And the respondent was declared acquitted of the charges in said
article.
On ARTICLE VIII., the vote stood for "guilty:"
Mr. Thompson-1.
Those voting " not guilty" were:
Messrs. Brown, Byrne. Churchill, Coleman, Fox, Frazier, Goodlett, Gullett,
Halliburton, Harris, Hedgpeth, Horner, Hyer, Jones, McFarland, MIeFerran,
MIelvaine, Morris, Newland, O'Neil, Parsons, Peyton, Rains, Richardson, Robin  son, Scott, Vernon, Watkins, Wilson, Wood, and Wright-31.
Absent-Mr. Johnson.
461
-1. 
HIGH COURT OF IMPEACII.MENT.
And the respondent was declared acquitted of the charges in said
article.
On ARTICLE IX., those voting "guilty" were:
Mlessrs. Byrne, MicFarland, McFerran, O'Neil, Parsons, Thomn)son, and Wat kins-7.
Those voting "not guilty" were:
Messrs. Brown, Churchill, Coleman, Fox, Frazier, Goo(dlett, Gullett, Ialliburton, HIarris, Hedgpeth, Horner, Hyer, Jones, McIlvaine, Morris, Newland,
Peyton, Rains, Richardson, Robinsois, Scott, Vernon, Wilson, Wood, and
Wright-25.
Abseit —Mr. Johnson.
And  the respondent was declared acquitted of the chlarges in said
article.
On ARTICLE X., those voting "guilty   were:
MIessrs. Brown, Byrne, Frazier, Goodlett, ialliburton, Ilorner, Hyer, MeFarland, MecFerran, Mcllvaine, O'Neil, Parsons, Rains, RPichardson, Thompson,
Vernon, Watkins, and Wright-18.
Those voting'not guiltyv' were:
Messrs. ('hurchill, Coleman, Fox, Gullett, lHarris, I-Ieddpeth, Joie,  iMorr[s
Newland, Peyton, Robinson, Scott, Wilson, and Wood —1I.
Abses t-Mr. Johnson.
And the rcspondent was declared acquitted of the charges in said
article.
On A.TICL,E XI., those voting "guilty" were:
Messrs. Brown, Byrne, Churchill, Frazier, Goodlett, Ilallbuo-ton, Iarris, liorner, Hyer, McFarland, MeFerran, MeIlvaine, O'Neil, Parsons, IPeytion, Bais.
-Richar(lson, Thompson, Vernon, Watkins, and Wright-21.
Those voting "' not guilty" were:
MIessrs. Coleman, Fox, Gullett, Hedgpetih, Jones, Morli.s,  ewn,, Robinison,
Scott, Wilson, and Wood —11.
Abtsent —Mr. Johnson.
And the respondent was declared acquitted of the charges in said
re'Ltitle.
(O)n ARTIC(LE XII., those voting'guilty" were:
Messrs. Byrnme, Frazier, ilalliburton, Horner, Iflyer, McFiarland. Mcllva ine,
()O'Neil, Thompson, Vernon, and Wright-11.
Those voting " not guilty" were:
Messrs. Brown, Churchill, Coleman, F'ox, Goodletlt, Gusllett, Ilarris, Mledgp(tli,
.)lones, MelFerran, Morris, Newland, Parsons, Peyton, Rains, Richardson. ]R[biansn, Scott, W atkins, Wilson, and WVood-21.
lbsc,t —Mr.  Johnson.
And the respondent was declared acquitted of the charges in said
article.
(Oi ARPTICLE XIII., those voting "guilty" were:
Messrs. Byrne, Chirchill, Frazi;ei.l Hyer, MceFarland(l. McFerran,J. Mfcllvai
Thomlpson, Vernon, W.tLkins, and Wright-li.
462 
HIGIH COURT OF IMPEACHMENT.
463
Those voting "not guilty" were:
Messrs. Brown, Coleman, Fox, Goodlett, Gullett, HIalliburton, Harris, Hedgpeth, Horner, Jones, Morris, Newland, O'Neil, Parsons, Peyton, Rains, Richardson, Robinson, Scott, Wilson, and Wood-21.
Absent-Mr. Johnson.
And the respondent was declared acquitted of the charges in said
article.
On ARTICLE XIV., those voting "guilty" were:
Messrs.      0.
Those voting " not guilty" were:
Messrs. Brown, Byrne, Churchill, Coleman, Fox, Frazier, Goodlett, Gullctt,
Italliburton, Harris, Iledgpeth, Horner, Hyer, Jones, McFarland, McFerran,
McIlvaine, Morris, Newland, O'Neil, Parsons, Peyton, Rains, Richardson, Robinson, Scott, Thomnpson, Vernon, Watkins, Wilson, Wood, and Wright-32.
Absent-Mr. Johnson.
And the respondent was declared acquitted of the charges in said
article.
On ARTICLE XV., those voting "guilty" were:
Messrs. Brown, Byrnle, Frazier, Goodlett, Halliburton, Horner,  Ilyer, McFarland, McIlvaine, O''eil, Parsons, Richardson, Thompson, Vernon, Watkins, and Wright-16.
Those voting " not guilty" were:
Messrs Churchill, Coleman, Fox, Gullett, Harris, Hedgpeth, Jones, McFerran, Morris, Newlaind, Peyton, Rains, Robinson, Scott, Wilson, and Wood-1G.
Absent-Mr. Johnson.
And the respondent was declared acquitted of the charges in said
article.
On ARTIC(LE XVI., those voting "guilty" were:
Messrs. Brown, Byrne, Churchill, Frazier,  Goodlett, Halliburton. ITolnerr
Hyer, McFarland, McFerran, Mcllvaine, O'Neil, Parsons, Peyton, Richardson
Thompson,  \Vernon, Watkins, Wood, and Wright-20.
Those voting "not guilty" were:
Messrs. Colemnan, Fox, Gullett, Hiarris, Hedgpeth, Jones, Morris, Newland,
Rains, Robinson, Scott, and Wilson-12.
Absent-Mr. Johnson.
And the respondent was declared acquitted of the chlarge, in said
article.
On APrTICLE XVII., those voting "guilty" were:
Messrs. Brown, Byrine, Coleman, Fox, Frazier, Goodlett, Halliburtonl, IHorner,
Ilyer, McFarland, McFerran, McIlvaine, Parsons, Peyton, Rains, Richardso)i,
hompson, Vernon, Watkins, and Wright-20.
Those voting "not guilty" were:
Messrs. Churchill, Gullett, Harr.is, Hledgpeth, Jones, MAforris, Xewlan(l, O'Neil,
,obinson, Scott, Wilson, and Wood-12.
Absent-Mr. Johnson. 
IIHIGH COURT OF IMPEACHMENT.
And the respondent was declared acquitted of the charges in said
article.
SENA'TOn Fox.  Mir. President, I would ask the indulgence of the Senate until morning.  I would a great deal prefer having some little time
to reflect upon this next proposition. It is one which to my mind has
been difficult, and it would be with much embarrassment that I would
vote upon it at present. I had expected, Mr. President, that the entire
testimony would be printed before we voted upon any proposition. I
said nothing about it in the beginning of our voting, and have submitted
to some oppression of feeling in voting, because I saw there was such
desire to dispose of the matter this evening. But I would insist upon
indulgence on this proposition, until to-morrow morning. I have used
all diligence in my power; I have been as attentive as I possibly could
be in listening to the testimony and arguments in this case; but I repeat
that my mind is divided on this one proposition.
SEXNATOR AVRIHT.  Mr. President, I presume the Senate will excuse
the gentleman from voting.
SEx-TOR Fox.  I do not ask to be excused.  I do not want to be excused.  If I do vote now I shall most certainly adopt the rule the honorable Senator from St. Louis (Mr. O'Neil) laid down to be governed by
so far as his action was concerned.
SENATORa WILSON.  I hope, Mr. President, the Senate will proceed to
vote.
SE-.ATOr, Fox.  I move an adjournment.
The motion was negatived by the following vote, the ayes and noes
having been demanded by Senator Scott:
AYRs —Messrs. Churchill, Colemian, Fox, Gullett, Halliburton, IHarris, IHedgpeth, Mcllvaiae, Parsons, Peyton, Raiins, Pobinson, and Wood-13.
NOES —Messrs. Browvn, Byrne, Frazier, Goodlett, lorner, Hyer, Jones, McFarland, MeFerran, Morris, Newlanld, O'Neil, Richardson, Scott, Thompsonll, Vernon, Watkins, Wilsonl, and Wright-19.
Absent-Mr. Johnson.
On ARTICLE XVIII., and last, which was then read, those voting
guilty" were:
Messrs. Brown, Byrne, Churchill, Frazier, Goodlott, Halliburton, Iorner,
Hyer, AMcFarlaind, McFerran, McIlvaine, O'Neil, Parsons, Peyton, Rains, Richardson, Thompson, Vernon, Watkins, Wood, and Wright-21.
Those voting " not guilty" were:
Messrs. Coleiman, Fox, Gullett, Harris, Hedgpeth, Jones, Morris, Newland,
Robinson, Scott, and Wilsoni-11.
Abscnt-aIMr. Johnson.
And the respondent was declared acquitted of the charges in said
article. 
SENAvTOr AVOOD.  I move the Court adjourn until 9 o'clock to-morrow
morning. Carried.
And then the Court adjourned.
464 
HIGHI COURT OF IMPEACHMENT.
SIXTEENTH DAY.
THURSDAY, June 23, 1859.
The Court met pursuant to adjournment, and was opened by proclamation.
SENATOR CHURCILL.  Mr. President, I ask leave to change my  vote
on the second article of impeachment.
SENATORa VaERa-.ON.  I object.
SENAiTOR Fox.  I would inquire of the honorable Senator from  St.
Louis if he understood the proposition at tihe time of voting?
SENATOR THOMPSON.  1 hope the gentleman will suffer the change to
be made.  I can easily imagine how a man would vote, or how he would
like to vote after an lhour's reflection on that article.  I hope my old
friend will withdraw his objection, if on no other ground than that of
courtesy.
SEN.\ATOR VErRNON.  I withdraw my objection.
SENATOR GOODLETT oflered the following resolution:
Resolvred, That three thousand copies of the record, evidence, and arguments
of the managers and respondent in the case of the State of MIissouri against
Albert Jackson, on articles of impeachment, be printed in bourgeois and minion type; that Thomas J. Ieinderson be appointed to superintend the printing
of the same: and that the Consmittee on Accounts be required to audit and
allow the expenses thereof; and that the Secretary of State be required  to furiiish fifty copies to the respondent and each of the mnanagers, twenty-five copies
to the State Library, one to the Reeorder of each county, and to distribute the
residue equally among the members of the two IHouses.
SENATOR SCOTT offered the following by way of substitute:
Re.soved. That the Jourinal of the present session of the Senate be published
and distributed as provided by law in other cases, and that the evidence, both
oral and record, in the trial of the lon. Albert Jackson, be published as all appendix thereto, and no other matter connected with said trial be so published.
SENATOR SCOTT. I desire to make one or two remarks, sir, in connection with that resolution. Now, I cannot for the life of me see the
propriety of making the people of the State pay the expense of publishing all the arguments, and all the debates, and all the opinions that
have been made in the progress of this trial. It is a Imatter, sir, in which
the public are not interested. If they had been, it is remarkably singular that none of the newspapers that cater to the public taste, and
whose business it is to furnish matters of interest to the public, have
sent a reportei' here to take notes of this trial for the benefit of their
readers. It is an evidence to my mind that it is not considered a matter of public interest. Now, sir, if any one has made a buncombe
speech in this case that he desires to go before the public for his future
benefit, let him print that speech at his own expense, as we have to do
when electioneering.  If no such speech has been made, why it is not
necessary to publish these things in which the public are not interested.
No one can be benefited by it but the individual who enunciated it;
and I am not here. sir, to vote the money of my constituents to publish
any such enunciation. Why, sir, just look at the amount of public
printing that was done at the last session of the Legislature.  We find
that during the progress of the session the amount paid out for public
printing was enormous. We had a large amount of public printing on
30
465 
S. IGE  COURT OF IMPEACILHMENT.
that occasion, and, sir, that amount was necessary; but when  we come
to examine the Journal, as printed, what do we find there?  We find,
sii, something which, in my experience, never appearred in the Journals
before.  And for what?  Why was it, sir, that every petition sent to the
Legislature, with the signature of every man signing that petition, upon
every subject, no matter how frivolous, appears printed as part of the
Journal of the Senate?  It has not, in my recollection, been the case
before; and if it has been, it is one of the expenses that should have
been curtailed, and ought ever to be properly curtailed, for it is of advantage to no human being but the public pet,-the public printer, who is
to be made fat by sucking at the public teat.  And, sir, this is the onlyllv
object that can be effected, unless it is to publish buncombe speeches
for the benefit of private individuals.  Do Senators want all the arguments to go before tho world as justification to them for the manner in
which they have cast their votes in deciding this case? Or will they not
feel prepared to stand upon their own conclusions from  the testimrony
and the facts, uninfluenced by anything but the convictions of their
own consciences in regard to what is right?  Is it expected, sir, to show
to the world that these arguments ought to have convinced men against
their own convictions, and that the verdict upon the several articles of
impeachment ought to have been different? Is it intended, sir, to niake
it an electioneering hobby with the people in order to justify the action
of this Senate?  What can be the object, sir, I cannot imagine; but
whatever it may be, it is not demanded by the public good; it is not
demanded by the public interest. They care nothing about the arguments; they care nothing about what was said.  What was dclone is the
question, and wherefore was it done.  The testimony in the cause enlightens them upon the subject and leaves them to formi their own conclusions.  Now, sir, I should like for any Senator who  is in favor of
publishing these speeches to let us know why it is necessary to puiblis-h
them.  Why, many things have occurred that would come within the
resolution to which I have offered a substitute, that Senators would
scarcely wish to see before the world as part of their proceedings.  I do
not recollect all the frivolous matters, but I will call the attention of
the Senate to one. A few days ago, a Senator arose from his seat and
asked leave of absence for a few minutes, and he said he wanted to go
out and it would not take him long.  [Laughter.]
SEN.\ATORP PaRnsos.  If the Senator will allow me. I will call his attention to the fact that the resolution does not provide for the printing of
the arguments of any Senator, or the argument of the Senator upon
my right, (Fox,) but only the arguments of the managers and the respondent.
SENATOR SCOTT.  That may be the case, sir, but it is not necessary to
publish the arguments of any one. If it is necessary that these arguments be published, is it not equally so that every proceeding of the
Court go before the world?  Why  select one, two, or hree of the
speeches and publish them to the world for the benefit of posterity and
the'rest of mankind,' to the exclusion of other able arguments? I
suppose no Senator's opinion has been changed by any argument.  It
. as the duty of the parties to make their argument; they had a right
to do it, and to undertake to influence Senators. They have discharged
that duty faithfully; but, sir, it is not necessary that we publish these
arguments in order that every man, woman, and chlild in the State of
5]iissouri shall be able to see whether they made able arguments or
otherwise.  How are the public interested in these arguments?  If the
public was interested, the public had a right to come here and listen:
and the newspapers had a right to come here andl report these argumAents if they thought them interesting to the reading public of the
466 
HIGH COURT OF IMPEACHMIENT.
State.  I am opposed to putting my hand into the public treasury and
paying to show the people whiether or not able arguments, pr-o or con,
have been made during this trial. I hops the Senate will not do it.
SENARoR MAcFEaIR.A.  I amn very much in hope that the articles of
impeachment, the replication, and every particle of the testimony in
this case will be published.  I differ very much with the Senator from
PBuchsnan, (Mir. Scott.)  I believe we differ on all important cases.  I
think the gentleman is too far from land in his little boat; he cannot
row against timhe as he did in days of yore.  HIe says the people of the
State are not interested in this trial. I should like to know if they are
not interested in knowing what their representatives have done in this
case, in view of the fact that they foot the bills.  Is  the gentleman
afraid that the publication of the report of this trial will give an un —
pleasant notoriety to his actions here?  The only regret I have with
reference to my action is, that I did not vote "guilty" in the two in —
stances where I voted for an acquittal.
SENATOR SCOTT.  I call the gentleman to order.  My point of order is
that he is referring to his action in the past, in regard to a matter iln
which the character of a private individual is interested.
SENATORa GOODLETrT.  Mr. President, I must confess I am a little astonished at the vehemence and energy with which the Senator from Buchanan has opposed the printing of the records; and my astonishment
is increased when I see him make an attempt to arraign an official for
the  iannier in which the Senate Journal is printed, when such question beais not the least relevancy to the point at issue.
The very idea of publishing these proceedings was suggested to me
by a gentleman opposed to the proceedings themselves.  It never entered my mind until that time.  I saw a desire upon the part of many
that the people should know what had taken place here.  I am surprised to see the gentleman oppose it. Hle talks about the press of this
State not having taken interest in this matter.  I hold in my hand the
receptacle of all the Black Republican vileness of this State, in which
an attempt is made to pour down upon the heads of the democratic
lmemnbers of this Senate the infamous and vituperative charge of hlaving
been actuated by a party spirit and partizan zeal in the prosecution of
this case of impeachment.
Sir, I have endeavored as a member  of this Court, acting under a
solemn oath, to discharge my duty during the pencdency of this trial.
To-day, I stand here as the representative of a free people, democratic
in principle-sent here to represent democratic principles and measures.
and to sustain the party to which I belong; and when I see an effort
made tending to cast calumny upon that party, I hold it due to my
constituents and the intelligent people I represent, to stand upon this,
floor and repel the accusation, let it come from what source it may.
Why, sir, but a few days ago it was published in a newspaper that the
expenses of this impeachment would be forty thousand dSlars, when,
sir, taking into consideration everything pertaining to it, including this
printing, I amn informed the expenses cannot exceed fifteen thousani
dollars.
SErNATOR NEwLNTD.  I understand the expenses of this session will be
fourteen thousand dollars.
SENATOR GOODLETT.  If it costs fifty thousand dollars, I stand up here
in favor of sen(ling a report of it broadcast to the people!  [A voice,
~that's right."]  Sir, we owe it to ourselves to let the people know upcn  what testimony we have acted, and what  arguments have been
brought before us.  Besides this, I want the lawyers of this State to see
their privileges; I want the people tu see the rights they havie in courts
of justice; I wvant them to know that a Judge of the Circuit Court hag
467 
HIGH COURT OF IMPEACHMENT.
a right to issue an attachment and imprison a man upon whom no previous process has been served.
SENATOR ROBINSON.  I call the Senator to order.  The gentleman is
alluding to matters that should not now be considered. After a night of
rest, some gentlemen appear to be still very restless. Now, I occupy a position in which I am perfectly collected.  I feel no uneasiness about this
matter, and desire no disturbance about it.  If gentlemen think proper
to go into a discussion of the evidence after a verdict has been rendered
I am willing to take a part with them.
SENATOR WATKINS.  Has the Senator a right, Mr. President, to get up
and put another gentleman down?
SENATOR ROBINSON. I am perfectly willing to hear the Senator from
Johnson, (Mr. Goodlett,) but I want to inform him  Mr. PRESIDLENT. The gentleman from Johnson will confine his remarks to the mnatter under consideration.
SENATOR P.ARSONS.  If the Senator from Johnson will permit me, I
will ask the Senator from Boone (Mr. Robinson) one question. I wish
him to designate the "restless persons" of whom he spoke.
SE.NATOR ROBINSO\.  I referred to the remarks that fell from the gentleman from Johnson. He attempted to discuss a matter to justify his
action. I do not know how the Senator from Cole (Mr. Parsons) may
stand in regard to it.  I do not presume the gentleman is restless.  The
remark was ironical. I did not design anything more by it than to
quiet him.
SENATOR GOODLETT.  I hope the conscience of the gentleman from
Boone rests as easy upon this matter as mine is and has been throughout this investigation. So help me God, I have endeavored to perform
my whole duty in this case, with a strict regard to the oath I took here
as a member of this Court, avoiding the influence of party spirit and
partizan feeling throughout the whole investigation. But, sir, we have
done with the case; the respondent has been acquitted and discharged
from the custody of this Court, and now, as a man, I have a right to
express my opinion; and I claim the right of setting forth the reasons
why I want this document published to the world.  I think I have the
right to say here that it is necessary for the people of this State to know
their rights; and this is one of the reasons, sir, why I undertook to
answer the Senator from Buchanan. I want the members of the bar
and the citizens of the State to know the rights they have in courts of
justice. I want them to know that upon some of these articles twentyone Senators have voted for the rights of the people. I have a right to
refer to the trial, sir, in order to give the reasons why I want these facts
to go to the world. Do I understand the Chair to decide I cannot refer
to the articles of impeachment by way of illustration to show why I
want the matter to go before the world?  I want the members of the
bar in the State of Missouri to know the fact that when an-attorney is
in the midst of an argument before a court of justice, that a Judge
from his seat on the bench may abuse him, bring charges against him,
when the court room is crowded with spectators, and prohibit that attor ney saying a word in his own defense, in order that these charges uncon tradicted may be scattered broadcast over the country; I want the people
to know that a Judge has the right to openly accuse a lawyer in court of
swearing to a lie, or causing his client to swear to a lie; I want the
people to know that a Judge can tamper with grand juries with im punity.
SENATOR SCOTT.  I call the gentleman to order.
Mr. PRESIDENT.  The Senator will confine his remarks to the matter
under consideration. I do not think it proper for Senators to enter at
468 
HIGH COURT OF IMPEACHMENT.
this time into an argument on the impeachability of the respondent in
this case.
SENATOR GOODLETT.  I was undertaking an answer to the question the
Senator propounded, with respect to the necessity of publishing this
trial. But if I am gagged and held down by the strict rules of this
body, I cannot proceed to answer his interrogatories.
S',XATORa PARSONS.  I have had a little experience on this floor, and it
does seem to me the Senator from Johnson (Mr. Goodlett) is in order.
Now, when a question comes up about printing any document, the subject matter of that document may be referred to.  When the question
of printing the Governor's message arises, are not Senators at liberty to
discuss masters referred to in the message, or any part of it? The same
privilege exists in connection with all documents, which, by the action
of this body, become part of the records of the State.
SENATOR GOODLETT.  I have no disposition to inflict a speech upon the
Senate in regard to this matter, but as the Senator asked me to give
reasons why I desired the publication of the report, I undertook to set
them forth. I state here that the newspaper press of the State has been
industriously engaged in circulating it over the country that the charges
preferred against the respondent in this case were absolutely ridiculous.
I call the attention of the Senate to a few remarks in the St. Louis Dermocrae of yesterday:
Trial of q,Ydqe Jacksoo.-The Jefferson City correspondent of the Revublican
denies that the trial now in progress before the Senate is assuming a political
cast. WVe should be gratified at this information if the writer did not mention
a circumstance which contradicts it completely. Hle states that eighteen Senators are hostile to the accused. We maintain this impeaches the tribunal of
gross partiality and, prejudice.  The statement could not have been made if
the ei;g,hteen Senators had not betrayed themselves by partizan expressions and
decisions.  The close observer should not be able to tell who are for and against
the Judge, because none should be either for or against him until all the testimony is given.  There are but four, it seems, who lean to neither side.  We can
acceprt the statemet of the writer in the Republican, as far as it implicates the
members of the Senate who belong to the same party as the 2epublican.  We
can also admit that the minority may be forced into a position by the majority
that the unfriendly feeling manifested by the latter may make the former resolute in their efforts to give the victim of the inmpeachment fair play; but we
assert that the political element must have been thrown in by the mnajority, who
are, consequently, responsible for the demoralization with which such a movement is fraught.      -  Tho publication of the testimony will be necessary to
the vindication of the Senate, if a verdict adverse to the Judge be renderedotherwise it may be truly said that the will of the pro-slavery democracy in the
Legislature is the tenure by which the judicial office is to be held in this State.
WVhat was here said was  the mere conjecture of a casual correspondent.
I ask the democratic Senators upon this floor whichlof them prejudged this case, or gave any expression before the conclusion of the evidence in the case as to the guilt or innocence of the accused?  I undertake to say none.  I have heard none in my conversations with all the
members of the Senate. I consider myself one of the eighteen referred
to in this article, and when I do so, I say the charge, so far as I am concerned, is utterly false.
W'hy select detached portions of the report of this trial to send out?
Let the people of Missouri understand the position that this distinguished Judge occupies; let them see the arguments he made before
this beldy; let them see the authorities he referred to in order to sustain
himself in the course he has pursued.
So far as I knowv, sir, no member of the democratic party seeks to
make political capital out of this matter; and so far as I am concerned,
469 
HIGH COURT OF IMPEACHMENT.
I am determined that no man of the opposition shall be able to make
political capital out of it. If I cannot have these facts officially published
and sent forth to the people in justification of a majority of the members
of this Seluate, I will put it over lily own signature and send it forth.
They shall know the ground upon which we have acted ill this case.  I
shall not undertake to defend myself from the charge of having been
actuated in this matter by party feeling or partizan zeal; but I hold that
it is due those voting pro and con in this to give the facts to the people
and let them determine how we acted in this matter. Sir, I impeach
no man's motives upon this floor.  I have charged no Senator with having acted contrary to the strictest rules of integrity. At the same time
I will not permit my motives to be impeached, either by the newspaper
press or any man.  I say it is necessary to the vindication of this body,
that these facts go forth to the people; and also that the people be informed of the extent of their rights, and govern themselves accordingly.
These, sir, are the reasons I have for wishing the publication of this
matter.
SExfr.TO VEROXN.  I wish to make a few-observations.  We have met
here, and we have been acting under the solemnity of an oath, regardless
of party.  I have been a democrat firom my cradle up to the present
time, and as such I shall oppose at all times any attempt made to deprive the public of information on all matters pertaining to the general
welfare. I ask who it is wishes to conceal his official acts from the public? If it costs five thousand dollars to publish this reporit, let it go. Aye,
sir, if the hiorse I ride should be taken from me to pay the taxes which
the publication of the proceedings in this case would cause to be levied
on my property, I would say print the report and let the people see how
far we have proved true to our trust.  I do not want to hide my acts or
the acts of my party from public scrutiny.  Let the people see whether
or not we have acted in a spirit of party animosity or partizan favoritism
in the course we have pursued in determining the guilt or innocence of
the respondent.  If my action in the case is open to censure, let my constituents know it, and have some data upon which to predicate their
disapprobation, and not mere idle rumor.  Whenever I desert my colors,
I want my country to desert me, and lay me low.  I shall vote for the
resolution.
SENATOR SCOTT.  I do not desire to detain the Senate.  It does seem
to rme I have stirred up a "hornet's nest" here very unconsciously.  I
have heard that "the galled jade winces," and unless the apothegm is
applicable at the present time, I cannot for the life of me see when it
would be. I propose in my resolution not to conceal anything from the
public, except the speeches, from the fact that it is alone upon the testimony we are authorized by law to render a verdict.  Itave we based
our convictions and formed our opinions upon the argumnents, aside
from the law and facts? If so, I say we have perjured ourselvesbefore the
country and before God. I have listened to these speeches, and the views
which each party introduced in regard to the law and the testimony;
but when I act, sir, I act upon my knowledge of the law, as it has been
given to me either by reading or hearing the authority announced from
the Court.  I act upon that, and then I act upon the testimony that has
been introduced, and not upon the opinion of any other man in regard
to the testimony and proofs.   Why  is it necessary to publish these
opinions? I asked for these reasons before, but I have not been answered.  Why is it necessary to publish the facts and  the testimony
here?  " In order that the world may see the ground upon which we
acted, and the people may know their rights." Will they know their
rights from the opinions of the attorneys and the defendant in this case?
Will they get their rights from the testimony and the specifications,
470 
HIGH COURT OF IMPEACHMENT.
andl the action of the Senate upon that testimony and those specifications?  I do not wishl to conceal anything.  I will not take the insinuation, as applied to me, that I wish to conceal anything from the public
eye that the public are interested in. I ask for reasons why the argument should be published,-for reasons why the public crib should be
robbed in ordce to, publish the speeches of gentlemen that can benefit
no one but the speakers.  Is it necessary to show  the defendant
made a lame or an able argument in his defense? or do Senators wish
from the character of that defense to enable the people to judge of the
qualifications of the man for the high official position which he occupies?  Are tlhey to pass their judgments upon the man?  If he is incapable, let them proceed against him by address.  But they have proceeded by impeachment.  The articles of impeachment with the replication have been published to the world. I propose to incorporate them.
Let them go with the evidence upon which this Senate acted, and the
public can see whether we have discharged our duties.  I am not one
of those, sir, that undertake to conceal may action.  I am only opposed,
si", to imiposing the expense upon the people of publishing the speeches
that have been made here.  The people will not take these speeches to
dleterm.ine as to the character of our action.  WAe are responsible to the
people for our action, and we are also responsible to ourselves for the
faithful manner in which we have tried and determined this case upon
the law and testimony, and not upon the speeches delivered by the
parties on either side. Yet, sir, gentlemen have been addressing the
Senate upon the presumption that some one is trying to prevent the
testimony in this case from going before the country. AIy resolution is
to publish that testimony. Then I say, sir, it is unjust to insinuate I
am trying to keep back any proper information from the people.  I did
not act upon the speeches, and if any other has, it is with him and his
conscience.
SENXrTOR GOODLETT.  SIr. President, I believe the constitution guaranties the right of every man to be heard by himself or counsel.  I\ow,
the State and the respondent have been heard in this case, and I ask if
it is not right to consider their arguments? If not, why have they a
right to be heard at all?
SENxTORa SCOTT.  I agree, sir, that every man has a right to be heard
by himself or by his counsel.  Where has he that right? Betore a tribunal that is to determine his rights. He has been heard here before
this tribunal, according to constitutional privileges. If the arguments
of the counsel or the defendant have influenced the action of any man,
it is his business, not mine.  I am one of those that act upon the testimony in the case and the law in the case.  I do not blame any other
Senator for the manner of his action, or the motives that have influenced him.  I presume these motives have all been correct.  I have the
kindest feelings for every Senator upon this floor, and I have the highest opinion of their honor. Put, sir, I ask again and again, why publish these speeches? why take money out of the public treasury to
publish the speeches that have been made here,-the speeches I am
making? Why do it? I say, sir, if any speeches are published here, it isjust,
and nothing less than just, that all the speeches that have been made
during this session, including those made on the subject now under
consideration, should be published to the world. But I say it is not
necessary to publish any.  It is a burthensome expense that can effect
no good, unless it be to render still fatter the fat officer of the govern ment that gets more pay out of the public treasury than any other
offi.cer in the State. —and honestly gets it it may be. It may give a little
C>fc[t to some of those that have delivered speeches.  If this is a matter
of. public interest, let it be urged as a reason why these speeches should.
471 
HtIGH COURT OF IMIPEACHMLENT.
be published.  Let us have a reason why these speeches should  be
published. I go for publishing to the world the testimony in the case.
Let the people see what testimony has been brought in this case, and
what their rights are. Sir, I am opposed to publishing the speeches. If
any are to be published, I say publish all.  I want to get the speech I
am making upon the record, so it shall go to the people protesting
against this unnecessary expense on the part of the Senate.  I say it
is just to me that it shall be published.
It has been asserted by some   newspapers that this trial will cost a vast
amount of money.  The result has proven they are mistaken.  I never
believed it would cost the amount predicted by some.  I am happy to
know it has cost less than I anticipated; but I am disposed to make it
cost less if I can do it, without depriving the country or the parties of
anything that is necessary for them to have, in order to enable them to
form a correct judgment of the nature of our action.  But the speeches
do not convev such information.  I presume no individual in the country will be governed by the speeches. It may be the opinion of some
man that one speech would have caused him to cast his vote in one
way, and another man that another speech would have influenced him
differently; but let each man decide from the testimony for himself.
SENATORtA WATINs. I do not desire to discuss this subject, but I would
beg leave to ask the gentleman (Mr. Scott) one question.  You say
there is no necessity for publishing the speeches. 1 ask you this question:  Did you examine the law applicable to this case, or would you
have known the law applicable to this case, had it not been pointed out
and made known to you in these speeches? and will the people before
whom you propose to lay this testim-ony know anything about the law
applicable to this case, unless they read the record and the speeches?
[A voice, "that's so."]
SE.\rTOa SCOTT.  It nmay be that down in the south-east the people
don't know the law; but I believe in every other portion of the State
of Missouri they are presumed to knowv the law and their rights upon
every case.  But are these speeches to include all the law that has been
read on both sides, and all the authorities that have been quoted during
the proceedings?
SENT.TOR YALI,IBURTON.  Certainly.
SE\ATOR SCOTT. I think then we had better collect them in pamphlet
form, and publish them for the benefit of the people.
Why, sir, has it been a practice to publish the law in regard to the
different cases that are brought by the country? HIas it ever been donein any case before?  I presume not.  Ihas it been found necessary to
publish the speeches that have been made pro and coca in a case?  I
presume not.  I admit, Mr. President, I am nmore familiar with the law
since I have heard it expounded by the parties on each side than I was
before, and was better prepared to act in the case than I would have
been in the absence of any authorities.  But I presume each Senator
here, had he never read these authorities, in the exercise of the high
functions which devolved upon him in this case, would have been under,
the necessity of examining the law for himself to ascertain what it was.
It has been to the convenience of the Senate that the parties have read
the authorities bearing upon this subject; they have enabled us to act
knowingly; but I presume we scarcely would have acted when we had
taken an oath to try this case, until we had acquainted ourselves with
the law. Sir, I am opposed to publishing these speeches, or any other
proceedings connected with this thing, excepting the testimony in the
case, together with the pleadings.
SENATOR CHUrCHII,L.  I do not pretend to say the Senate should justify
all the votes I gave upon this subject.  I wish to call attention to one
4 i2 
HIGH COURT OF IMPEACHMENT.
thing.  We all know a great many papers in the State have referred to
this trial which we have just finished as a farce. The Senate has been
abused in various papers in the country since the commencement of this
trial. This impeachment was gotten up by the House of Representatives.
They sent their managers here to prosecute this case, and I contend,
Mfr. President, that it is due to the ILouse of Representatives and to the
people that they should be enabled to see in what manner these gentlemen sent here to manage this case have conducted it, and how far they
have performed their duty.
I believe this is the second trial of the kind that has occurred since
Missouri became a State —a period of nearly forty years.  I confess I was
very unfamiliar with the law governing such cases when this trial commenced, and I take it for granted a majority of my constituents were
just as ignorant of proceedings of this kind as I was. For one I wish
my constituents to know what has been the evidence before us on this
subject and the authorities cited by the parties, so they may understand
whether we have performed the duties which we were sent here to perform.
I am sorry, Mr. President, that anything has been said here this morning that would give this thing any political character whatever. I would
say that, although many gentlemen have differed with me in this matter,
and though I have voted to sustain a great many of the articles of impeachment during the pendency of this trial, most of the opposition
Senators I have heard say nothing about it. I believe in casting their
votes they were actuated by just as conscientious motives as we upon
the other side of the case were.
SENATOR WATKINS.  I hope the gentleman did not pretend to say the
opposition, as a party, are influenced here?
SEiNATOR CIURCHILL.  I say the votes of the opposition will show that,
as a party, they have not been influenced by party considerations. I
ask to make that correction. I wished to state that fact, because, sir,
since I have been here at this trial I have been struck with the evidence
of fairness and of conscientious motives manifested by these gentlemen
in their action upon this subject.
I believe this resolution, offered by the Senator from Johnson, (Mr.
Goodlett,) ought to carry; and I think it due to the whole country it
should carry. A remark has fallen from the Senator from Boone, (Mr.
Robinson,) that after a night's sleep some gentlemen seem to be uneasy
on account of their action on this subject. I can say that so far as I am
concerned in this matter I did not give a single vote in favor of these
articles I would not stand by to-day.
SE.NATOa ROBINSON.  I had supposed my explanation of that remark
was sufficient. It was predicated upon what the gentleman from Johnson was saying.  I said it ironically.  I thought the gentleman showed
a disposition to sustain his action in the premises.  I think hetas conscientious in what he lid.  The Senator from Cole seemed to be a little
anxious about it.  If I had reflected, it would have been addressed to
the Senator from Cole, because I know cogitation on these things influences a man occasionally.
SEN-ATOR CHURCHILL.  The proceedings of bodies of this kind are not
familiar to me nor to my constituents. I wish these proceedings to be
published that every man in my county may know what has been done,
and the reasons influencing Senators here in casting their votes.
SENATOR TrHOMPSON.  Mr. President, I am opposed to the amendment
and am in favor of having a reasonable number of copies printed containing the entirety of the proceedings in this case.
Sir, the gentleman from Buchanan has been asking reasons for the
publication of a full report of the proceedings, yet all the time failing
473 
HIGH COURT OF IMPEACHMENT.
to bring forward an argument why it should not be published. The
question involved is not, as the gentlemnan supposes, relating entirely to
the influences exerted by the arguments upon the minds of the Senators
in the formation of a verdict in this case, but it comprehends a relation
which exists between the House of Representatives and this body, together with important considerations disconnected with the Senate's
action as a body, and transcending the contracted view which  the
learned gentleman has taken of the subject.  The House of Representatives instituted proceedings in this case, prepared the articles of impeachment, selected two of its members to manage the case on behalf
of the State; and now it is claimed by gentleman upon this floor that the
action of the House through its Representatives here merits not sufficient consideration to entitle its publication as a part of the proceedings
in the case! But not only so,-in their zeal to ignore the relation which
the House of Representative sustains to the case, and to prevent that body
knowing in what manner its representatives here have discharged the
duties entrusted to them, they have overlooked the fact that the carrying out of their views would result in depriving the respondent, if not
of an imperative right, of a courtesy, which, I trust, no Senatorial body
in the Unitedl States under similar circumstances would be unwilling to
accord to him,-namnely, that of publishing his defense in connection
with the testimoniy against him, and allowing him to show to the world
wherein its invalidity exists.
Mluch has been said about the enormous expense of printing the argumients.  I am authorized by my friend O'Neil to say that the cost of
printing the entire proceedings will niot exceed two hundred and fifty
dollars. After having already expended fifteen thousand dollars in the
examination of this case, shall we let the public remain in ignorance of
our proceedings, the House of Representatives in the dark as to what
their managers have done toward sustaining their action, and suppress
the respondent's defense, simply because a mere pittance, compared
to the amount already expended, will furnish the desired information?
Why, sir, I would pay for it out of my own individual funds rather than
not have the full report printed.
A debate has been going on here this mnorning, which I think, Mir.
President, entirely out of order,-(democrats and opposition, and all that
sort of thing. I willingly acknowledge I am the worst partizan that
ever had a head; but I hope I have sense enough not to manifest its
spirit on an occasion like the present, when it is entirely uncalled for.
There is no party question involved here, and why sensible men
should  work themselves into such a high-pressure state of party
feeling, I can't imagine. I am not willing to believe my senses, even if
I thought I smelt a party " mice;" for this should be the last place in
the world for one to make his appearance. There will doubtless be considerable talk about what we have done here. Why, i regard to myself, it has already been said this morning by one of the Senators:
"there's old Thompson, confound his old skin, he voted guilty every
time-clean through."  I have no objections to that; yet I do think it
is nothing but justice due myself and constituents, that when such
charges are made against me I may have the "documents" to show
why I did thus; and so does my old friend from Andrew, (Mfr. Wilson,)
who voted "not guilty." I want him to have a fair shake. If ever we
should go before the people. (and there is no telling but that Missouri
may turn the very way I want her to go,) I don't want his friends to
slander mine, nor mine to slander his.
I am in favor of printing, and I will vote against the amendment.
We want to let the people know what constitutes an offense
sufficient to dispossess a Judge of his office. We also want to furnish
474 
HIGH COURT OF IMPEACHMENT.
rules of proceedings for the instiuction of Legislatures coming after
us, before whom similar cases may arise. It may be economic policy.
It may be of great benefit to the Judiciary of the State. Why the
gentleman frown  Buchanan  could ever  get it into  his brain that
the arguments should not be published I can't see. As was said by my
friend from Cape Girardeau, (Mr. Watkins,) who spoilt my speech, that
was the very nmarrowi.  Why, what did I know about the law that bore
on thle case until it was referred to? I venture there is none here so
familiar with law as not to have learned something during the progress
of this trial.
SE-\-TOR PIArSO.-s.  Mr. Presidelnt, I had supposed, sir, when this resolution offered by the Senator from  Johnson was read, that he would
ilnd a hearty concurrence in it fir'om  all parts of the chamber; that
the highest tribunal known to the State having rendered a most solemn
verdlict and judgment, one in which the people of the whole State are
interested and must necessarily feel a great interest in time to come, I
had supposed there would be no dissenting voice to letting them know
,what our opinions were and upon wvhat they were founded.  Sir, we
publish documents here when in political session, many of which are of
the slightest imiportance to the people of the State, and we send them
out by thousands.  But here a great rule has been established in Missouri by the decision of this honorable Court, which, for future time,
must work for weal or woe.  As was said by the Senator from Johnson,
rules have been laid down by the judgment of this Court which authorizes Judges to take certain privileges and to do certain  things, the
propriety of which has been doubted heretofore-at least whether they
liad that power or not. WAe have by our solemn judgment here authorized and directed, and said to the Judiciary of the State, that it is the
law of this land that you can act as counsel in a certain manner. I an
not controverting the wise judgment of this Court; but I say this is a
rule which this Court has adopted, and that the Judges and counsel
throughout the State ought to know their rights and what are not their
rights.  The people of Missouri have been told by our judgment here
that a TJude may make certain assertions, and it is not criminal,-it is
not high misdemeanor; and if he make assertions derogatory to the
character of parties litigant in his courts, this solemn judgment here
sustains him. I shall not question the correctness of that judgment,
but I say it is now the law of the land so far as rulings here are concerned, and our constituents ought to know it.  It has been ruled here
by this high tribunal, after mature deliberation and reflection, that the
Judge before whom a criminal is upon trial is authorized to examine
andl interrogate a witness upon behalf of the prosecution, and  SE-xrTOa Fox.  I arise for the purpose of calling the gentleman to ord,er.  My point of order is this: Hie now undertakes to determine for
those who may have differed with him in judgment in casting thor votes
on this question, and assumes to try the conclusions which governed
their action.
SENATOra IHALLITnurToN-.  I would ask, Mr. President, if the rule does
not require points of order to be made in writing?
MAr. PRESIDENT.  I do not know that it is so.  I do not think the Senator from Cole (Mr. Parsons) is out of order.
SEN.ATOR PARSONS.  I impugn no Seniator's motives.  No man will deny
this judgment is the record of the highest tribunal of the State, that we
are bound by it, and that future legislation will be bound by it. I shall
not take, as did the Senator from Buchanan, a political view of this thing
n the way he has taken it. I did not think about buncombe at all, and
I did not suppose, in a dignified body like this, that word would ever be
used. lie charges that we desire to print these speeches in order that
475 
HIGH COURT OF IMPEACHMENT.
somebody may make buncombe out of it. Let us see how it will stand.
I will take the gentleman upon that proposition, and let us see to what
party I belong. If I would descend to the discussion of politics, what
benefit would be derived from it? I believe one of the managers in this
case, who made a speech, belongs to our party; I believe the other one,
who laid down fully and explicitly and so clearly the law in this case,
belongs to the party to which the Senator from Buchanan is attached.
I am sure, in the language of my friend who is not now in his seat, that
the publication of both their arguments would be dealing out evenhanded justice. So far as the respondent is concerned, I confess I do
not know to-day. except from rumor last night, after this case was de
cided, to what political party he does belong. Then, I say the argument
of the Senator from Buchanan that this thing was gotten up here for the
purpose of giving some particular person who made a speech, buncombe
before the country, falls to the ground for the reason that, so far as we
know, these speeches will go from different political parties.
SENATOR SCOTT. I desire to correct the Senator from Cole. I made no
allusion to parties when I spoke of the publication of these speeches. I
said they would be published only for the benefit of the parties delivering them.
SENATOR PA.RSONS.  The gentleman has twice or thrice propounded the
question, "why publish the arguments in this case?"  I will answer that
question for him, or, in other words, I will aid in answering it, because it
has well been answered heretofore.
In the first place, sir, the managers on behalf of the State presented
to this Court the points upon which they intended to rely for conviction.
In the next place, the respondent presented to this Court the points he
intended to rely upon for acquittal. Then, in the argument upon the
case, the manager who opened the case stated to this Court the law of
the case, and made his reference to it. For what purpose? So that the
Court might be informed in regard to the law. He made his argument
and he applied the facts to the law of the case, the respondent rebutting
with his law and rebutting with his facts as far as he could, and the
mainagers concluded. Now what is the condition of it? Why, sir,
here we have the law of the case laid down to us and the points in
authority in the case laid down to us, and upon them  we have decided.
And yet the Senator from Buchanan triumphantly asks where did you
ever see such a course taken before.  I have to refer him to the western
end of this capitol and tell him to take up their decisions. Every
decision of the Supreme Court of Missouri, from the very first to the
last act, even in causes where an hundred dollars were not involved,
you find the points of arguments, and you find the authorities insisted
upon, both by the counsel for the plaintiff in error and for the defendant
in error, and even in some cases, where the Supreme Court looked upon
it as an important case, long arguments have been emrdied.  I think,
sir, that the Senator from Buchanan had forgotten that fact, otherwise
he would not have asked that question so triumphantly. I n the Peck
case the arguments of counsel were published, as was also the case in
the Chase trial; and for the reason that the people might know  the
points and authorities relied upon by both parties.
But another reason, sir, for the publication of it. We know very well
as a reading people in Missouri they will not undertake to go over all
this evidence in detail, except as I shall show hereafter;  but they will
take the respondent's accusation, and the case as made out and insisted
upon by each party-they will read it over, and where the respondent
and managers do not agree in regard to the testimony, then the people
will turn to the record and evidence, and see which party was right and
which party was wrong. That, sir, is one reason why it slihould be pub
476 
IHIGH COURT OF IMPEACHMENT.
hished,-that is a reason why it should go to the world,-so the whole
matter can be scanned in full. As I said before, this is one of the most
important adjudications that has ever been had in Missouri. There is
an adjudication here, according to my humble judgment,-a proposition
properly adjudged (because I must respect the judgment of this Court
like I would that of any other court) that authorizes a Judg,e of a Circuit Court to erase, and change, and underline, and supply a record in
the most important cases.
SEN-ATOR SCO)TT.  I call the gentleman to order.
SENATOPR ROBINSON.  I would ask the Senator how he comes to the
conclusion that that is the law of the land.  I presume the gentleman
comes to it by belief in evidence that I discarded. I say he is not justifiable, and this Court is encouraging disturbances by permitting this
conmmentary upon its action.  If the gentleman insists upon this commentary, I shall insist upon my privilege to go into the ring, and when
I do enter the ring I do not intend to spare him.  I say the gentleman
is out of order, because he is conmmenting upon the past action of this
Court.  Hie is going on the conclusions of his own judgment, and not
the conclusions of law as established by this Court. He is giving his
own construction of that law to the prejudice of those who made this
decision. If the gentleman can have any object in the world, it is
simply, as the gentleman  from Buchanan said, to exhibit a little
buncombe.
SENATOR PA.-SONS.  I inquire who it is that rests uneasy in his seat
now? [Laughter.]
SENATOR IRoBINsox.  I respond in this wav: I am  not uneasy in my
seat, nor do I feel uneasy; but I am sorry to see any Senator place himself in a position of condemning or vindicating his past action when he
knows very well that past action cannot be reversed. It looks to me
very much as though the Senator felt very uneasy and was anxious to
give to the people of the State his reasons for casting his vote on this
question.
SENATOR PARSONS.  I am sorry, sir, that I have disturbed the boasted
equanimity of the Senator from Boone. Hle first attacked me this
morning, rather indirectly, about my uneasiness, but I am sure the evidence exhibited in this case will require the conviction of him and the
acquittal of me. The Senator further remarked in a speech here, to
which I must reply, that his allusion as to uneasiness was perhaps
directed more to myself then to anybody else,-that sometimes I had
reacted, that sometimes I had changed my opinions, that sometimes I
had followed the same course whether I was in the right or in the
wrong. I must say to the Senator from Boone that from the cominmence
ment of this trial I have never discovered the slightest reaction in him.
He has been standing to his position all the while.  Not that I pretend
to say, Mr. President, he thought this reaction would have been iaproper, but because he believed it was his honest judgment. Idid, on
one of the propositions, vote for the acquittal of the accused, because I
deemed it right; and on other occasions I voted for his conviction,
because I believed that was right. If that is reaction, I believe I reacted according to the law and the evidence in this case.
Mr. President, there is another objection I have to the amendment
offered by the Senator from Buchanan. The type in which this printing is proposed to be done by the original resolution, makes the cost of
publication cheaper than could be done under the substitute. The
original resolution names the kind of type in which it should be printed
for this reason.
I am sorry, Mr. President, I have detained the Senate so long.
SENATOR RoBINsoN. Mr. President, I might perhaps be satisfied with
477 
HIGHI COURT OF IMPEACHIMENT.
ietting this discussion pass ofi; but because I see a gentleman busy taking a report of it, let it go to the country for wlhat it is worth.  When
it must be so evident to every one present that grave Senators have
gotten up here for the purpose of reading a lecture in regard to this
subject, I do not feel disposed to let thie occasion pass without letting
the Senate and people know what view of the subject I have, so far as
the past action of this Senate is concerned.  The Senator from Johnson
has told us that he wishes it to go to the people that a Judge has certain powers under the decision of this Court; hie wishes it to go to the
people that a Judge may peremptorily order a lawyer to sit down; that
he may change the record  SENATOR GOODLETT.  I call the Senator to order.  I was not permitted
to speak upon it, and if it was not allowed me  to comment upon the
facts, it is not for him to comment upon them.
SE.NATOR ROBINSON.  There is no proposition here to keep from the
people anything whatever in regard to this trial, that should be  legitimately beifore them.  The proposition of the Senator fromi  Buchanani
is simply to print the charges, the replication, and the evidence in the
case.  I have no objection to the printing of the speeches.  I shall not
vote against a proposition to that effect, since I have learned that the
printing of these speeches is absolitely necessary to sustain  the action
of a majority of this Senate before the people.''hy, the Senator from
Cole regards it as a political question, aind tbor what purpose?  Does that
Senator expect the people of the State will takle this decision into their
hands and reverse it?  Why does he want It to go out to the people?
This is a pretext for the purpose of reading a lecture to Senators upon
this floor for their past action.  As I said before, I ldo not envy that
self-respect in a man who is disposed to rise here and read a lecture inii
such a case.  It indicates to me very clearly that there is somewhere a
doubt as to the propriety of his own action.  This is all I have to say
in regard to it.
SENATOR- FaZIEr.  I feel it due to mLyself to make an explanation  in
regard to the vote I gave.  I have sat silenit in mry  seat, and heard the
whole discussion, and now that I am called uS)on to vote on this proposition, I will present the reasons for the vote I am  going to give.  In
the first place, I think the people of the State sihould have the whole
matter before them, and not a part of it.  Some of the votes I gave
were for the acquittal of the respondent, and some were for his conviction. In giving them I was actuated by what I conceived to be justice,
according to the law and the evidence in the case.  1 have no doubt
every other Senator acted as honestly as I did. I am surprised that any
Senator should object to the full account going to the people, and be
unwilling to stand or fall by the result.  The Senate will bear me out
in the assertion that I am as much opposed to extravagant expenditure
and have voted against as many appropriations as any man upon this
floor; but when the necessity of the case demands a reasonable approipriation, like the proposed one, I cannot raise an objection.  I wish the
people to judge of our action, not from imperfect predicates, but from
a full andc fair stand point, such as the entire record of our proceedings
will present.
SENATOR WILsoN.  I should like for the Chairman on Printing to
make a statement in relation to the probable costs.
SENATOR SCOTT.  I find so many of the Senators anxious to have the
speeches printed, that I shall withdraw my substitute.
SFrN trTOP O'-N\EL.  The expense of printing the arguments will not be
over $2)0.
SE:ATOa  [oaORRIS.  I will suggest to the Senator fiom Johnson to embrace in his resolution the articles, ansswer and l(i^ication.
478 
HIGH COURT OF IMPEACHPMENT.
SE.NATOR WILSON.  The respondent, upon his arraignment last winter,
delivered a speech before this Court.  I do not know whether or not it
was reported. I think it should be embraced in the report, because in
that speech, if I remember rightly, the respondent gave his view of the
law, and the jurisdiction of the General Assembly.
SIr. PRESIDENT.  He traveled over the same ground in his opening
speech here.
SEN-ATOI PARSONS.  I will explain.  He filed a motion of the nature
of a demurrer and argued the law under it, and it was on my motion it
was overruled.
SENATOr PLAIN,S.  I would prefer five thousand.
SENATOR WILSON.  I think one copy is sufficient for each member.
SENATOPR AWATTINS.  I would like to have twenty-five copies.  If I get
three copies, what is the result?  I will have one copy for myself, one
for Cape Girardeau, one for Bollinger, and none for Perry.  Now, my
friend from New Madrid has six or eight counties, and most of them
would get none.  I go for printing three thousand.  I look upon it as
one of the most importanlt measures ever presented here.  In this case
great fundamental principles have been involved.  I am anxious the
people shall know all about this matter.  It is a little strange that all
of those gentlemen who voted against these articles of impeachment
seem to be opposed to letting the people know all about it.
SENATOR ROBIN-SOX.  I announce that absolutely not so; and if the gentleman chooses to make such allusions, it is not only unbecoming him,
but in my estimation not becomning a gentleman.
SENATOR 5WATXINS.  The gentleman is not to judge for me what is becoming a gentleman.
I wish to make this statement: A Senator introduces a proposition
against publishing the arguments in this case.  I see the Senators who
voted in favor of the respondent uniformly  SENATOR ScoTT.  I call the gentleman to order.  I say to him andcl this
Senate, that I do not intend to have my action anima,dverted upon by
any Senator upon this floor. I have acted upon the view I have taken,
and no Senator shall dare to animadvert upon anything that influenced
my action.
SEXATOR WATKrINS.  I do not pretend to animadvert upon any action.
SENA.TOR SCOTT.  I do not intend hlie shall comment upon the action
of any one connected with the trial.
SEXA-TOPR WATKINS.  I merely stated a ifact which I believe exists. Every
Senator who is opposed to the publication of the arguments in this
case. voted against every article of impeachment.
SEFNATOR SCOTT.  I call the gentleman to order, [advancing to the seat
of Mr. AVatkins,] and I will inform him that he mst n?ot refer to my
action or votes on this trial.  It is out of order.  It is unbecoming to
do it.  The man must have acted from impure motives himself before
he was prepared to impugn my motives.  [Cries of "order,"'forder."]
SENATOR WATKINS.  I have not impugned the motives of any man.  I
have stated a mere fact. I will stand by the record, and the world can
judge of the fact.
SENATOP SCOTT.  I deny the right of the Senator to state such a thing.
SE.NATOR WATIKINS.  I impute improper motive to nobody.
SENATOR SCOrT. That does not come up in this controversy: it has
nothing to do with it.                                    *:
SENATOR JON-E.. I suppose I am one of those voting in th:inority.
So far as I am concerned I intend to vote for the proposition of the
Senator from Johnson.  I suppose each Senator is very well satisfied
with the vote he gave.  I am satisfied with mine.  I am as willing for
many copies to be printed as any body on this floor. So far as the intima
479 
HIGH COURT OF IMPEACHMENT.
tion goes that no one voting in the minority was in favor of the publication of his acts. it is unfounded.
SEN.ATOR WATKINS.  We are about to separate, perhaps, never to meet
again. I should regret exceedingly if anything 1 said produced unkind
feelings. I am sure I did not mean to offend. But I take back nothing
I said.  I merely remarked a fact that could not be controverted.  I believe the gentleman from Franklin, the gentleman from  3uchlanan, and
every gentleman upon this floor, has acted with as pure motives as I
have upon this occasion. I repeat it, I did not intend to cast any slur
or calumny upon any man; I merely intended to state a fact. That
fact does exist, and I will not retract. I hope we shall separate with no
unkind feelings.
SENATOR RAINS. Mr. President, I shall vote for the resolution. I do so,
sir, from different motives, however, than those that have been assigned
by Senators who have spoken.  I vote for it that the people may know
what the great democratic party have done here. I am sorry any allusion to partizanism was brought into the Court, because we have been
recognized here as a jury, and have no right to introduce politics to influence the action of the jury. I hope partizan feeling has influenced
none here in the casting of a vote.  I shall vote for the adoption of this
resolution for this reason, in addition to the fact that the people of
Missouri are entitled to the whole-not only to the evidence, but to the
speeches that have been made by both sides; by the accused and by the
managers.  It will be recollected these managers were elected in the
House of Representatives, and have become, to a certain extent, officers
sent here by the State of Missouri.   Vhey come here in the very same
attitude we do, and they are responsible to the body that elected them.
Shall we say, sir, to the lower branch of the Assembly, you have sent
managers here to conduct a cause, and yet you shall not know how they
have performed their duty? Notwithstanding it was attempted at the
early part of this discussion to show that this was a party measure, and
what is commonly denominated the "opposition" was afraid for this
report to be printed, I am one, sir, to vote for the resolution. The
charge I hurl back in the teeth of the asserters of it. I believe that
under the classification recently made I am denominated one of the opposition. I am one of the opposition in so far as I am ever ready to oppose any attempt to bring a party matter into a grave decision like this.
I never consult the interests of any party when I go to discharge a
sworn duty.
The resolution was then adopted by the following vote:
AYyrs-Messrs. Brown, Byrne, Churchill, Fox, Frazier, Goodlett, Ialliburton,
lHarris, Hedgpeth, IIorner, Hyer, Jones, McFarland, Mcilvaime, Morris, Newland, O'Neil, Parsons, Peyton, Rains, Robinson, Scott, Thompson, Yermon,
Watklins, Wilson, Wood, and Wright-28.
NoEs-lMr. Gullett-1.
Absent-Messrs. Coleman, Johnson, MeFerroan, and RichardSon.
After some further unimportant business, on motion of SENATOR WATKiNS the ITigh Court of Impeachment ad(journed gis die.
War DAc.  -) nt
Li Lrary, 9
480