Page:The Green Bag (1889–1914), Volume 17.pdf/220

 THE IMPEACHMENT OF JUDGE SWAYNE sponsible for all acts done in pursuance thereof, though they did not directly par ticipate therein, and the fact that they all signed the precipe in the State Court suit, tended strongly to establish the conspiracy. Monday morning Belden and Davis went into court (Paquet having been called to New Orleans by sickness in his family). Davis had his name entered of record as counsel for the plaintiff, and discontinued the McGuire suit. W. A. Blount then, as amicus curiae, stated that in his opinion a contempt had been committed and sug gested that an investigation be had for the purpose of determining whether a con tempt had been committed or not, and afterward wrote out and signed a motion to that effect in the motion book. The mo tion was not on oath. Mr. Palmer in his speech on the impeachment resolution con tended that in case of a contempt not com mitted in the presence of the court the pro ceeding "must be founded on an affidavit setting forth the facts and circumstances constituting the alleged contempt sworn to by the aggrieved party or some other person •who witnessed the offense. W. A. Blount was certainly the "aggrieved party" and was therefore properly moving, yet, in his address before the Senate, Mr. Palmer bit terly complained that Blount acted in that capacity, using this choice collection of language, characteristic to some extent of the impeachment proceedings, to adequately express his feelings. "He selected the one man Blount whose grist he had insisted upon grinding in his judicial mill and who had been able, through Judge Swayne's re fusal to recuse himself, to force a discon tinuance of the case, and who might there fore be supposed to feel willing to do the dirty work of the judge to institute and prosecute the proceedings for contempt," evidently ignoring the right of "the ag grieved party" to intervene, which he had previously asserted. His law was evidently temporarily in eclipse. As to the necessity of an oath the "Encyclopaedia of Law and

20J

Procedure" states the law as follows: "As a rule the proceeding to punish for contempt committed out of the presence of the court should be instituted by a statement or some writing or affidavit presented to the court setting forth the facts" (Vol. ix, p. 38). So an oath is not an essential element in the motion. The judge made a declaration on the nth, Monday, relative to the facts, incorrect in some of its details, but in substance an ac curate statement of his connection with lot 91, and this was made a matter of record. Tuesday, Belden and Davis appeared and filed an unverified answer. Neither of them testified, though they had every op portunity. Mr. Palmer in his report to the House stated in substance five times that they had purged themselves on oath and enlarged upon the iniquity of holding them for contempt after such purging, and al though his attention had been called to the fact by Judge Swayne, that there had been no such purging, he afterward repeated in substance the same statement six times in his speech to the House. In their answer they did not deny bringing the suit in the State Court, but they did not claim it was in good faith or that they so believed. They denied being present on November 5, when Judge Swayne made the statement, but did not deny that it had been com municated to them, or that they had any knowledge thereof. For their reasons for believing that Judge Swayne or some mem ber of his family was interested in lot 91, they referred to the declaration made No vember n, the day before, in which dec laration it was stated that " thereupon.and by his advice, the said deed was returned to the proposed grantors with the statement that no further negotiation whatever could be conducted by them in relation to this property, and they thereupon refused to purchase either at the present time or in the future any portion of said tract," an express and unequivocal repudiation of the deed. Yet having referred to this very