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that the question of the power of the legislature over this charter
should have been finally decided in the State court. An earnest
hope was entertained that the judges of the court might have
viewed the case in a light favorable to the rights of the trus
tees. That hope has failed. It is here that those rights are now
to be maintained, or they are prostrated for ever. Omnia alia
perfugia bonorum, subsidia, consUla, auxilia, jura ceciderunt
Quern enim alium appellem ? quern obtester ? quern implorem ?
Nisi hoc loco, nisi apud vos, nisi per vos^judices^ salutem nostram,
quce spe exig-ua extremaque pendet^ tenuerimus ; nihil est prcelerea
quo confugere possimus.


A PETITION having been presented to the House of Representatives
of the Commonwealth of Massachusetts, praying an inquiry into the offi
cial conduct of James Prescott, Esquire, Judge of Probate of Wills for
the County of Middlesex, and charging him with misconduct and male-
administration in office ; and having been referred to a committee, who
reported a statement of facts, together with resolutions setting forth
that the said Prescott ought to be impeached therefor, at the bar of the
Senate of the Commonwealth; on the 2d day of February, 1821, an
order was passed accordingly, and the Senate demanded to take meas
ures for his impeachment and appearance to answer thereto. A com
mittee was thereupon appointed to prepare and report articles of im
peachment ; and John Glen King, Levi Lincoln, William Baylies, War
ren Button, Samuel P. P. Fay, Lemuel Shaw, and Sherman Leland, Es
quires, were appointed managers. Fifteen articles of impeachment were
exhibited and read.

The articles substantially charged him with holding probate courts for
transacting business at other times than those authorized by law, demand
ing and taking illegal fees, and acting as counsel, and receiving fees as
such, in cases pending in his own court, before him, as judge.

After receiving the respondent s answer to the articles of impeach
ment, and hearing the evidence in support of and against the same,
Messrs. Leland, Shaw, and Button argued the case in behalf of the man
agers. Mr. Hoar then opened the argument on the part of the respond
ent; Mr. Blake followed, and was succeeded by Mr. Webster, who
spoke as follows.

MR. PRESIDENT, I agree with the honorable managers in the
importance which they have attributed to this proceeding. They

* Argument on the Impeachment of James Prescott, before the Senate of Mas
sachusetts, on the 24th of April, 1821.


have, I think, not at all overrated that importance, nor ascribed
to the occasion a solemnity which does not belong to it. Per
haps, however, I differ from them in regard to the causes which
give interest and importance to this trial, and to the parties likely
to be most lastingly and deeply affected by its progress and re
sult. The respondent has as deep a stake, no doubt, in this
trial, as he can well have in any thing which does not affect life.
Regard for reputation, love of honorable character, affection for
those who must suffer with him, if he suffers, and who will feel
your sentence of conviction, if you should pronounce one, fall
on their own heads, as it falls on his, cannot but excite in his
breast an anxiety, which nothing could well increase, and noth
ing but a consciousness of upright intention could enable him
to endure. Yet, Sir, a few years will carry him far beyond the
reach of the consequences of this trial. Those same years will
bear away, also, in their rapid flight, those who prosecute and
those who judge him. But the community remains. The
Commonwealth, we trust, will be perpetual. She is yet in her
youth, as a free and independent State, and, by analogy to the
life of individuals, may be said to be in that period of her ex
istence when principles of action are adopted and character is
formed. The honorable respondent will not be the principal suf
ferer, if he should here fall a victim to charges of undefined and
undefmable offences, to loose notions of constitutional law, or
novel rules of evidence. By the nature of moral retribution, the
evil of such a course would fall most heavily on the State which
should pursue it, by shaking its character for justice, and im
pairing its principles of constitutional liberty. This, Sir, is the
first interesting and important impeachment which has arisen
under the constitution of the Commonwealth. The decision
now to be made cannot but affect subsequent cases. Govern
ments necessarily are more or less regardful of precedents, on
interesting public trials, and as, on the present occasion, all who
act any part here have naturally considered what has been done
and what rules and principles have governed, in similar cases, in
other communities, so those who shall come after us will look
back to this trial. And I most devoutly hope they may be able
to regard it as a safe and useful example, fit to instruct and
guide them in their own duty ; an example full of wisdom and
of moderation; an example of cautious and temperate justice;


an example of law and principle successfully opposed to tem
porary excitement; an example indicating in all those who
bear a leading part in the proceedings a spirit fitted for a ju
dicial trial, and proper for men who act with an enlightened
and firm regard to the permanent interests of public constitu
tional liberty. To preserve the respondent in the office which
he fills, or to deprive him of it, may be an object of little in
terest to the public. But on what principles he is to be so
preserved or deprived is an inquiry in the highest degree impor
tant, and in which the public has a deep and lasting interest.

The provision which the constitutions of this and other States
have made, for trying impeachments before the Senate, is obvi
ously adopted from an analogy to the English constitution. It
was perceived, however, and could hardly fail to be perceived,
that the resemblance was not strong between the tribunals
clothed with the power of trying impeachments in this country
and the English House of Lords. This last is not only a
branch of the legislature, but a standing judicature. It has
jurisdiction to revise the judgments of all other courts. It is
accustomed to the daily exercise of judicial power, and has
acquired the habit and character which such exercise confers.
There is a presumption, therefore, that it will try impeach
ments as it tries other causes, and that the common rules of
evidence, and the forms of proceeding, so essential to the rights
of the accused, which prevail in other cases, will prevail also in
cases of impeachment. In the construction of our American
governments, although the power of judging on impeachments
could probably be nowhere so well deposited as with the
Senate, yet it could not but be perceived beforehand that this
high act of judicature was to be trusted to the hands of those
who did not ordinarily perform judicial functions; but who oc
casionally only, and on such occasions, moreover, as were gen
erally likely to be attended with some excitement, took upon
themselves the duty of judges. It must, nevertheless, be con
fessed, that few evils have been as yet found to result from this
arrangement. Although in the various States of the Union
there have been several impeachments, there have been fewer
convictions, and fewer still in which there is just reason to sup
pose injustice has taken place. From the experience of the
past, I trust we may form favorable anticipations of the future,


and that the judgment which this court shall now pronounce,
and the rules and principles which shall guide that judgment,
will be such as shall secure to the community a rigorous and
unrelenting censorship over maladministration in office, and to
individuals entire protection against prejudice, excitement, and

The respondent is impeached for various instances of al
leged misconduct in his office, as Judge of Probate for the
County of Middlesex. In order that we may understand the
duties which he is charged with violating, it is necessary to in
quire into the origin and nature of these duties, and to examine
the legal history of the Commonwealth in regard to the officers
who, from time to time, have executed and performed these du
ties. It is now two centuries since our ancestors established a
colony here. They brought with them, of course, the general
notions with regard to property, the administration of justice,
and the peculiar powers and duties of different tribunals, which
they had formed in the country which they left ; and these no
tions and general ideas they adopted in practice, with such
modifications as circumstances rendered necessary. In Eng
land, they had been accustomed to see the jurisdiction over
wills and administrations exercised in the spiritual courts, by
the bishops or their ordinaries. Here, there were no such
courts. Still it was a necessary jurisdiction, to be exercised by
some tribunal, and in the early history of the colony it was
exercised by the same magistrates, or some of them, on whom
the other portions of judicial power were conferred. Wills
were proved and administrations granted by the county magis
trates, essentially in the same manner as in England by the
bishops or their delegates. It seems that any two magistrates,
with the clerk of the county court, might prove a will, and
cause it to be recorded in the county court, and might grant
administrations in like manner.*

At length, by the act of 1685,f it was expressly declared that
the county court, in cases of probate of wills and the granting
of administrations, should have the same power and authority
as the ordinary in England.

* Ancient Charters, 204. t Ibid - 205 -

VOL. v. 43


By the provincial charter of 1692, all power and jurisdiction
in the probate of wills and granting administration was con
ferred on the Governor and Council. The executive thus be
came supreme ordinary, and by the provisions of the statutes
was to exercise the same power and authority as were exer
cised by the ordinary in England.

At this time no statute had regulated fees in the probate
office ; and yet it is not probable that business was done there
at that time without fees, any more than at later periods. We
must look, therefore, for some other authority than a statute
permission for the establishment and regulation of fees in this
office. And as the Governor and Council possessed the general
power of the courts in England, it is material to inquire into
the authority and practice of those courts in this particular.
There can be no doubt that, in the English courts, fees, in cases
of probate and administration, were, from early times, in most
cases regulated by custom and the authority and direction of
the courts themselves, without statute provisions. A table of
fees, established in 1597, in the time of Archbishop Whitgift,
may be seen in Burn s Ecclesiastical Law.*

This table sets forth a long list of charges and fees of office
accruing in the administration of estates, such as for " admin
istration," which probably means decreeing administration,
" commission," which is the letter of administration, " interloc
utory decree," " examination of account," " respite of inven
tory," " caveat," " citation," " quietus," and many others. At
this time there was no statute which established the fees of
office in cases of administration, except one single provision in
the statute of 21 Hen. VIII. ch. 5, which enacted, that for
granting administration on goods under forty pounds, the judge
should receive no more than two shillings and sixpence. It
appears from the preamble of that statute, that no previous law
was existing on the subject, and the grievance recited is, that
the bishops and their ordinaries demanded and received greater
fees for the probation of testaments, and other things thereunto
belonging, than had been aforetime usual and accustomed.
The preamble recites also, that an act of Henry the Fifth had
ordained that no ordinary should take, for the probation of tes-

* Vol. II. p. 266.


taments or other things to the same belonging, any more than
was accustomed and used in the time of King Edward the
Third, which act did endure but to the next Parliament by reason
that the said ordinaries did then promise to reform and amend
their exactions ; but, inasmuch as the evil was still continued
and aggravated, the act proceeded to limit and fix fees of office
for the probate of wills, and for other services respecting tes
tate estates, and contains the single provision above men
tioned, and no more, respecting administrations on intestate

It is entirely clear and certain, that the fees of bishops and
their ordinaries did not have their origin in the grant or provis
ion of any act of Parliament. Such acts were passed only to
restrain and limit the amount, and to prevent exaction and ex
tortion. The right to demand and receive fees rested on the
general principle of a right to compensation for services ren
dered ; and, in the absence of statute limitations, the amount
was ascertained by the practice and usage of the courts, being
reasonable and proper. Hence it happened in England that
different fees were paid, and probably still are, in the different
dioceses, according to the usage of different courts, and the
time when their tables of fees were respectively established.
" In the several dioceses there are tables of fees, different, as it
seemeth, in the several charges, in proportion to the difference
of times wherein they have been established." * This is pre
cisely what has happened, and what, whether we are allowed to
prove it or not, every member of this court knows now exists,
in relation to the different counties of this Commonwealth.

It is most material to the respondent s case to understand
clearly on what ground it is that, as Judge of Probate, he had
a right to receive fees for services performed in his office.
There is a difference of opinion, in matter of law, in this re
spect, between the managers and ourselves, wide enough, in my
judgment, to extend over the whole case. If the House of Rep
resentatives be right in the legal doctrine which their managers
have introduced here, I agree at once that the case is against
the respondent, unless, indeed, an indulgence may be allowed
to his infirmity in not understanding the law as it is now as-

* 2 Burn, 269.


serted. I will proceed to state the question now at issue be
tween the managers and us, as clearly as I may be able. The
managers contend, that all fees of office in such offices as the
respondent s arise only from the express grant of the legislature,
and that none can be claimed where such grant is not shown.
We, on the other hand, humbly submit that the right, in such
offices, to receive fees, is the general right to receive reasonable
compensation for services rendered and labor performed, and is
no otherwise affected by statute than as the amount of fees is
or may be thereby limited.

It is certain that judges of probate in this State are required
to perform many acts (such, for instance, as granting guardian
ship to persons non compotes mentis), for which no fees are spe
cifically established by the statute. One of the learned man
agers has expressly advanced the proposition, that for such ser
vices the judge is entitled to receive no fees whatever. He
contends that the law presumes him to be adequately paid, on
a sort of average, for all services by him performed, by the fees
specially provided for some. On the contrary, we very humbly
insist, that in all such cases the judge has a right to receive a
just and reasonable fee of office for the service performed; the
amount to be settled on proper principles, and, as well as in
any way, by analogy to similar services, for which the amount
of fees is fixed by statute. The statute, for example, estab
lishes the fee for a grant of guardianship over minors. It
establishes none for guardianship over persons non compotes
mentis. The precise difference between the learned managers
and us is, that they contend that, in the last case, the judge is
entitled to receive no fee at all ; while we think that he has
a right to receive, in such case, a reasonable fee, and that
what is reasonable may fairly be determined by reference to
what the law allows him in the case of guardianship over

I rejoice, Sir, in behalf of my client, that we have here a
plain, intelligible question of law to be discussed and decided.
This is a question in which neither prerogative nor discretion
has aught to do. It is not to be decided by reasons of state, or
those political considerations which we have heard so often,
but so indefinitely, and in my judgment so alarmingly, referred
to, and relied on, in the opening speeches of more than one of


the learned managers. It may possibly happen. Sir, to the
learned managers to share the fortunes of the gods in Homer s
battles. While they keep themselves in the high atmosphere
of prerogative and political discretion, and assail the respondent
from the clouds, the advantage in the controversy may remain
entirely with them. When they descend, however, to an equal
field of mortal combat, and consent to contend with mortal
weapons, cominus ense, it is probable they may sometimes get,
as well as give, a wound. On the present question, we meet
the learned managers on equal terms and fair ground, and we
are willing that our client s fate should abide the result. The
managers have advanced a plain and intelligible proposition, as
being the law of the land. If they make it out, they show a
good case against the respondent ; if they fail so to do, then
their case, so far as it rests on this proposition, fails also. Let,
then, the proposition be examined.

The proposition is, as before stated, that for services which
the law requires judges of probate to perform, but for which
there is no particular fee established or provided by statute, they
can receive no fee whatever.

In the first place, let it be remarked, that, of the various
duties and services required of judges of probate, some grow
out of the very nature of their office, and are incidental to it, or
arise by common law ; others were imposed by statutes passed
before the establishment of any fee bill whatever, and others,
again, by statutes passed since. The statute commonly called
the fee bill was passed for the regulation of fees in other courts,
and other offices, as well as of the judges and registers of pro
bate. It imposes no duty whatever on any officer. It treats
only of existing duties, and of those no farther than to limit
fees. It declares that "the fees of the several persons here
after mentioned, for the services respectively annexed to their
names, shall be as follows," and so forth. The statute then pro
ceeds to enumerate, among other things, certain services of the
judges of probate ; but it is acknowledged that it does not,
enumerate or set forth all the services which the law calls on
them to perform.

In our opinion, Sir, this is simply a restraining statute. It
fixes the amount of fees in the cases mentioned, leaving every
thing else as it stood before. I have already stated, that, in


England, fees in the ecclesiastical courts, for probate of wills,
and granting administrations, were of earlier date than any
statute respecting them, and their amount ascertained by usage
and the authority of the courts themselves. " The rule is," says
Dr. Burn, " the known and established custom of every place,
being reasonable." *

And if the reasonableness of the fee be disputed, it may be
tried by jury, whether the fee be reasonable-! If this be so,
then clearly there exists a right to some fee, independent of a
particular statute ; for if there be no right to any fee at all, why
refer to a jury to decide what fee would be reasonable ? But
the law is still more express on this point. " Fees are certain
perquisites allowed to officers in the administration of justice,
as a recompense for their labor and trouble ; ascertained either
by acts of Parliament or by ancient usage, which gives them
an equal sanction with an act of Parliament." " All such fees
as have been allowed by courts of justice to their officers, as a
recompense for their labor and attendance, are established fees ;
and the parties cannot be deprived of them without an act of
Parliament." $

I may add, that fees are recoverable, in an action of assump-
sitj as for work and labor performed. The doctrine contended
for on the other side is contradicted, in so many words, by a
well-settled rule; namely, that if an office be erected for the
public good, though no fee is annexed to it, it is a good office ;
and the party, for the labor and pains which he takes in execut
ing it, may maintain a quantum meruit, if not as a fee, yet as a
compensation for his trouble.

The universal practice, Sir, has corresponded with these rules
of law. Almost every officer in the Commonwealth, whose
compensation consists in fees of office, renders services not
enumerated in the fee bill, and is paid for those services ; and
this through no indulgence or abuse, but with great propriety
and justice. Allow me to mention one instance, which may be
taken as a sample of many. Some thousands of dollars are
paid every year to the clerks of the several Courts of Common

* 4 Burn s Ecclesiastical Law, 267.

!1 Salkeld, 333.
Coke, Lit. 368 ; Free. Chan. 551 ; Jacob s Law Diet., " Fees."
Moore, 808 ; Jac., "Fees," (A. E.) ; Hard. 355; Salk. 333.


Pleas in this State, for certified copies of papers and records
remaining in their oflices. The fee bill neither authorizes the
taking of any such fee, nor limits its amount, nor mentions it
in any way. There are other instances, equally clear and strong,
and they show us that all the courts of justice, and all the offi
cers concerned in its administration, have understood the law
as the respondent has understood it ; and that the notion of the
learned managers derives as little support from practice, as it
does from reason or authority. The learned managers have
produced no one opinion of any writer, no decision of any
court, and, as I think, no shadow of reason, to sustain them
selves in the extraordinary ground which they have taken ;
ground, I admit, essential to be maintained by them, but which
the respondent could devoutly wish they had taken somewhat
more of pains to examine, before, on the strength of it, they had
brought him to this bar. I submit it, Sir, to the judgment of
this court, and to the judgment of every judge and every law
yer in the land, whether the law be not, that officers paid by
fees have a right to such fees, for services rendered, on the
general principle of compensation for work and labor perform
ed ; the amount to be ascertained by the statute, in cases in
which the statute has made a regulation ; and, in other cases, by
analogy to the services which are especially provided for, and
by a consideration of what is just and reasonable in the case.
With all my respect, Sir, for the learned managers, it would be
mere affectation if I were to express myself with any diffidence
on this part of the case, or should leave the topic with the
avowal of any other feeling than surprise, that a judge of the
land should be impeached and prosecuted upon the foundation
of such opinions as have in this particular been advanced.

Before I proceed further, Sir, I wish to take notice of a point,
perhaps not entirely essential to the case. The respondent, in
his answer, has stated that the jurisdiction of judges of probate
consists of two parts, commonly called the amicable or volun
tary and the contentious jurisdiction. One of the learned
managers has said, that this distinction can by no means be
allowed, and has proceeded to state, if I rightly understood him,
that the voluntary jurisdiction of the English ecclesiastical
courts has not, in any part of it, devolved on, and been granted
to, the judges of probate here. As it is not perhaps material


for the present discussion to ascertain precisely what is the true
distinction between the voluntary and the contentious jurisdic

Online LibraryDaniel WebsterThe works of Daniel Webster (Volume 05) → online text (page 49 of 53)