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tion of the ecclesiastical courts, as understood in England, I
shall content myself with reading a single authority on the sub
ject. Dr. Bum says: "Voluntary jurisdiction is exercised in
matters which require no judicial proceeding, as in granting
probate of wills, letters of administration, sequestration of va
cant benefices, institution, and such like ; contentious jurisdic
tion is where there is an action or judicial process, and consist-
eth in the hearing and determining of causes between party and
party." *

It can be now at once seen, Sir, whether any part of the ju
risdiction exercised by judges of probate in this State be volun
tary, within this definition of the distinction between voluntary
and contentious.

After these observations, Sir, on the general nature and origin
of fees accruing in the probate offices, I shall proceed to a con
sideration of the charges contained in these articles.

And the first inquiry is, whether any misconduct or male-
administration in office is sufficiently charged upon the respond
ent in any of them. To decide this question, it is necessary
to inquire, what is the law governing impeachments ; and by
what rule questions arising in such proceedings are to be deter
mined. My learned colleague, who has immediately preceded
me, has gone very extensively into this part of the case. I have
little to add, and shall not detain you by repetition. I take it,
Sir, that this is a court ; that the respondent is brought here to
be tried; that you are his judges ; and that the rule of your de
cision is to be found in the constitution and the law. If this be
not so, my time is misspent in speaking here, and yours also
in listening to me. Upon any topics of expediency or policy;
upon a question of what may be best, upon the whole ; upon a
great part of those considerations with which the leading man
ager opened his case, I have not one word to say. If this be a
court, and the respondent on his trial before it ; if he is to be
tried, and can only be tried for some offence known to the con
stitution and the law ; and if evidence against him can be pro
duced only according to the ordinary rules, then, indeed, coun-

* Vol. I, p. 292.



DEFENCE OF JUDGE JAMES PRESCOTT. 513

sel may possibly be of service to him. But if other considera
tions, such as have been plainly announced, are to prevail, and
that were known, counsel owe no duty to their client which
could compel them to a totally fruitless effort for his defence.
I take it for granted, however, Sir, that this court feels itself
bound by the constitution and the law ; and I shall therefore
proceed to inquire whether these articles, or any of them, are
sustained by the constitution and the law.

I take it to be clear, that an impeachment is a prosecution
for the violation of existing laws ; and that the offence, in cases
of impeachment, must be set forth substantially in the same
manner as in indictments. I say substantially, for there may be
in indictments certain technical requisitions, which are not ne
cessary to be regarded in impeachments. The constitution has
given this body the power of trying impeachments, without de
fining what an impeachment is, and therefore necessarily intro
ducing, with the term itself, its usual and received definition,
and the character and incidents which belong to it. An im
peachment, it is well known, is a judicial proceeding. It is a
trial, and conviction in that trial is to be followed by forfeiture
and punishment. Hence the authorities instruct us, that the
rules of proceeding are substantially the same as prevail in other
criminal proceedings.* There is, on this occasion, no manner of
discretion in this court, any more than there is, in other cases, in a
judge or a juror. It is all a question of law and evidence. Nor
is there, in regard to the evidence, any more latitude than on tri
als for murder, or any other crime, in the courts of law. Rules
of evidence are rules of law, and their observance on this occa
sion can no more be dispensed with than any other rule of law.
Whatever may be imagined to the contrary, it will commonly
be found, that a disregard of the ordinary rules of evidence is
but the harbinger of injustice. Tribunals which do not regard
those rules seldom regard any other ; and those who think they
may make free with what the law has ordained respecting evi
dence, generally find an apology for making free also with what
it has ordained respecting other things. They who admit or
reject evidence according to no other rule than their own good
pleasure, generally decide every thing else by the same rule.

* 2 Wooddeson,Gll; 4 Bl. Comm. 259; 1 H. P. C. 150; 1 Chilly s Crim
inal Law, 109.



514 DEFENCE OF JUDGE JAMES PRESCOTT.

This being, then, a judicial proceeding, the first requisite is,
that the respondent s offence should be fully and plainly, substan
tially and formally, described to him. This is the express requi
sition of the constitution. Whatever is necessary to be proved
must be alleged; and it must be alleged with ordinary and rea
sonable certainty. I have already said, that there may be neces
sary in indictments certain technical niceties, which are not
necessary in cases of impeachments. There are, for example,
certain things necessary to be stated, in strictness, in indict
ments, which, nevertheless, it is not necessary to prove precisely
as stated. For instance, an indictment must set forth, among
other things, the particular day when the offence is alleged to
have been committed ; but it need not be proved to have been
committed on that particular clay. It has been holden, in the
case of an impeachment, that it is sufficient to state the commis
sion of the offence to have been on or about a particular day.
Such was the decision in Lord Winton s case, as may be seen
in 4 Hatsell s Precedents, 297. In that case, the respondent,
being convicted, made a motion to arrest the judgment, on
the ground that " the impeachment was insufficient, for that the
time of committing the high treason is not therein laid with
sufficient certainty." The principal facts charged in that case
were laid to be committed " on or about the months of Septem
ber, October, or November last" ; and the taking of Preston, and
the battle there, which are among the acts of treason, were laid
to be done about the 9th, 10th, llth, 12th, or 13th of Novem
ber last,"

A question was put to the judges, " Whether in indictment
for treason or felony it be necessary to allege some certain day
upon which the fact is supposed to be committed ; or, if it
be only alleged in an indictment that the crime was committed
on or about a certain day, whether that would be sufficient."
And the judges answered, that it is necessary that there be a
certain day laid in the indictment, and that to allege that the
fact was committed on or about a certain day would not be suf
ficient. The judges were next asked whether, if a certain day
be alleged in an indictment, it be necessary, on the trial, to
prove the fact to be committed on that day ; and they answered,
that it is not necessary. And thereupon the Lords resolved, that
the impeachment was sufficiently certain in point of time. This



DEFENCE OF JUDGE JAMES PRESCOTT. 515

case furnishes a good illustration of the rule, which I think is
reasonable and well founded, that whatever is to be proved must
be stated, and that no more need be stated.

In the next place, the matter of the charge must be the breach
of some known and standing law; the violation of some posi
tive duty. If our constitutions of government have not secured
this, they have done very little indeed for the security of civil
liberty. " There are two points," said a distinguished states
man, " on which the whole of the liberty of every individual
depends ; one, the trial by jury ; the other, a maxim arising out
of the elements of justice itself, that no man shall, under any
pretence whatever, be tried upon any thing but a known law."
These two great points our constitutions have endeavored to
establish ; and the constitution of this Commonwealth, in par
ticular, has provisions on this subject as full and ample as can be
expressed in the language in which that constitution is written.

Allow me then, Sir, on these rules and principles, to inquire
into the legal sufficiency of the charges contained in the first
article.

And first, as to the illegality of the time or place of holding
the court, I beg to know what there is stated in the article to
show that illegality. What fact is alleged on which the man
agers now rely ? Not one. Illegality itself is not a fact, but
an inference of law, drawn by the managers, on facts known or
supposed by them, but not stated in the charge, nor until the
present moment made known to any body else. We hear them
now contending, that these courts were illegal for the following
reasons, which they say are true, as facts, viz. :

1. That the register was absent;

2. That the register had no notice to be present ;
o. That parties had not notice to be present.

Now, not one of these is stated in the article. No one fact
or circumstance now relied on as making a case against the
defendant is stated in the charge. Was he not entitled to know,
I beg to ask, what was to be proved against him ? If it was to
be contended that persons were absent from those courts who
ought to have been present, or that parties had no notice who
were entitled to receive notice, ought not the respondent to be
informed, that he might encounter evidence by evidence, and be
prepared to disprove what would be attempted to be proved ?



516 DEFENCE OF JUDGE JAMES PRESCOTT.

This charge, Sir, I maintain, is wholly and entirely insufficient.
It is a mere nullity. If it were an indictment in the courts of
law, it would be quashed, not for want of formality or technical
accuracy, but for want of substance in the charge. I venture
to say, there is not a court in the country, from the highest to
the lowest, in which such a charge would be thought sufficient
to warrant a judgment.

The next charge in this article is for receiving illegal fees for
services performed. I contend that this also is substantially
defective, in not setting out what sum, in certain, the defendant
has received as illegal fees. It is material to his defence that he
should be informed, more particularly than he here is, of the
charge against him. If it be merely stated, that for divers ser
vices respecting one administration he received a certain sum,
and for divers others respecting another, another certain sum,
and that these sums were too large (which is the form of ac
cusation adopted in this case), he cannot know for what ser
vice, or on what particular item, he is charged with having
received illegal fees. The legal and the illegal are mixed up
together, and he is only told that in the aggregate he has
received too much. In some of these cases, there is a number
of items or particulars in which fees are charged and received ;
but in the articles these items or particulars are not stated,
and he is left to conjecture, out of ten, or it may be twenty,
particular cases, which one it is that the proof is expected to
apply to.

My colleague has referred to the cases, in which it has been
adjudged, that, in prosecutions against officers for the alleged
taking of illegal fees, this general manner of statement is in
sufficient. It is somewhat remarkable, that ancient acts of Par
liament should have been passed expressly for the purpose of
protecting officers exercising jurisdiction over wills and admin
istration against prosecutions in this form; which were justly
deemed oppressive. The statute 25 Ed. III. ch. 9, after recit
ing " that the king s justices do take indictments of ordinaries,
and of their officers, of extortion, or oppressions, and impeach
them, without putting in certain wherein, whereof, or in what
manner, they have done extortion," proceeds to enact, " that
his justices shall not from henceforth impeach the ordinaries,
nor their officers, because of such indictments of general extor-



DEFENCE OF JUDGE JAMES PRESCOTT. 517

tions or oppressions, unless they say, and put in certain, in what
thing, and of what, and in what manner, the said ordinaries or
Hieir officers have done extortions or oppressions."

The charge in this case ought to have stated the precise
act for which the fee was taken, and the amount of the fee
received. The court could then see whether it were illegal.
Whereas the article, after reciting certain services performed by
the respondent, some of which are mentioned in the fee bill,
and others are not, alleges that for the business aforesaid the
respondent demanded and received other and greater fees than
are by law allowed. Does this mean that he received exces
sive fees for every service, or was the whole excess charged on
one service ? "Was the excess taken on those particular services
for which a specific fee is given by the statute, or was it taken
for those services not mentioned in the fee bill at all ? But fur
ther, the article proceeds to state, that afterwards, during and
upon the settlement of said estate, the respondent did demand
and receive divers sums, as fees of office, other and greater than
are by law allowed ; without stating at all what services were
rendered, for which these fees were taken ! It is simply a gen
eral allegation, that the respondent received from an adminis
trator, in the settlement of an estate, excessive fees ; without
stating in any manner whatever what the excess was, or even
what services were performed ?

I beg leave to ask, Sir, of the learned managers, whether they
will, as lawyers, express an opinion before this court that this
mode of accusation is sufficient? Do they find any precedent
for it, or any principle to warrant it ? If they mean to say, that
proceedings in cases of impeachment are not subject to rule ;
that the general principles applicable to other criminal proceed
ings do not apply ; this is an intelligible, though it may be an
alarming, course of argument. If, on the other hand, they ad
mit that a prosecution by impeachment is to be governed by
the general rules applicable to other criminal prosecutions ; that
the constitution is to control it; and that it is a judicial pro
ceeding ; and if they recur, as they have already frequently
done, to the law relative to indictments for doctrines and max
ims applicable to this proceeding ; I again ask them, and I hope
in their reply they will not evade an answer, will they, as law
yers, before a tribunal constituted as this, say that, in their opin-

VOL. v. 44



518 DEFENCE OF JUDGE JAMES PRESCOTT.

ion, this mode of charging the respondent is constitutional and
legal? Standing in the situation they do, and before such a
court, will they say that, in their opinion, the respondent is not,
constitutionally and legally, entitled to require a more particular
statement of his supposed offences ? I think, Sir, that candor
and justice to the respondent require that the learned mana
gers should express, on this- occasion, such opinions on matters
of law as they would be willing, as lawyers, here and else
where to avow and defend. I must, therefore, even yet again,
entreat them to say, in the course of their reply, whether they
maintain that this mode of allegation would be sufficient in an
indictment; and if not, whether they maintain that in an im
peachment it is less necessary that the defendant be informed
of the facts intended to be proved against him, than it is in an
indictment. The learned managers may possibly answer me,
that it is their business only to argue these questions, and the
business of the court to decide them. I cannot think, however,
that they will be satisfied with such a reply. Under the circum
stances in which he is placed, the respondent thinks that the
very respectable gentlemen who prosecute him, in behalf of the
House of Representatives, owe a sort of duty, even to him. It
is far from his wish, however, to interfere with their own sense
of their duty. They must judge for themselves on what
grounds they ask his conviction from this court. Yet he has a
right to ask, and he does most earnestly ask, and would repeat
edly and again and again ask, that they will state those grounds
plainly and distinctly. For he trusts that, if there be a respon
sibility, even beyond the immediate occasion, for opinions and
sentiments here advanced, they will be entirely willing, as pro
fessional men, to meet it.

I now submit to this court, whether the supposed offences of
taking illegal fees, as charged in this article, are set forth legally
and sufficiently, either by the common rules of proceeding in
criminal cases, or according to the constitution of the State.

As to the manner of stating the offence in this article, I mean
the allegation that the respondent refused to give, on request,
an account of items of fees received, it appears to me to be
substantially right, and I have no remarks to make upon it.
The question upon that will be, whether the fact is proved.

All the objections which have been made to the first article



DEFENCE OF JUDGE JAMES PRESCOTT. 519

apply equally to the second ; with this further observation, that
for the services mentioned in this article the fee bill makes no
provision at all. The same objections apply also to the third,
fourth, and fifth articles.

It seems to us, Sir, that all these charges for receiving illegal
fees, without setting out, in particular, what service was done,
and what was the amount of excess, are insufficient to be the
foundation of a judgment against the respondent. And espe
cially does this hold of the charge of receiving fees for ser
vices not specified in the fee bill ; it not being stated what he
would be properly entitled to in such cases by usage and the
practice of the courts, and there being no allegation that the
sum received was an unreasonable compensation for the ser
vices performed. In this respect, the articles consider that to be
settled by positive law which is not so settled. The second
article, for example, alleges that the respondent demanded and
received, for certain letters of guardianship granted by him over
persons non compotes mentis, " other and greater fees than are by
law allowed therefor." This supposes, then, that some fees are
allowed by law therefor ; yet this is the very case in which it
has been contended by the managers that no fee whatever was
due ; there being none mentioned in the fee bill. Between the
words of the article and the tenor of the argument there ap
pears to me to be no small hostility. Both cannot be right.
They cannot stand together. There should be either a new
argument to support the article, or a new article to meet the ar
gument.

Having made these observations on the legal sufficiency of
all the articles which charge the respondent with holding un
lawful courts, and demanding and receiving unlawful fees, be
fore proceeding to those which advance charges of a different
nature against him, allow me to advert to the evidence which
has been given on these first five articles respectively ; and to
consider what unlawful act has been proved against the re
spondent in relation to the matters contained in them.

In the first place, it is proved that the respondent held a
special probate court at Groton, on the 14th of October, 1816 ;
and at such court granted letters of administration to one Tar-
bell. This court the register did not attend. With respect to
parties concerned in the business then and there to be transact-



520 DEFENCE OF JUDGE JAMES PRESCOTT.

ed, they all had notice, as far as appears ; and no one has ever
been heard to complain on that account.

It has now been contended, Sir, by the learned managers, that
this court was holden unlawfully, because not h olden at a time
previously fixed by law. They maintain that judges of probate
can exercise no jurisdiction, except at certain terms, when their
court is to be holden.

On the contrary, the respondent has supposed, and has acted
on the supposition, that he might lawfully hold his court, for
the transaction of ordinary business, at such time and place as
he might think proper ; giving due and proper notice to all par
ties concerned. He supposes he might so have done, indepen
dently of the provisions of any statute ; and he supposes, more
over, that he was authorized so to do by the express provision
of the statute of 1806.

The first inquiry, then, is, whether the probate courts in this
Commonwealth be not courts which may be considered as al
ways open, and authorized at all times to receive applications
and transact business, upon due notice to all parties ; or whether,
on the contrary, their jurisdiction can only be exercised in term,
or at such stated periods and times as may be fixed by law. It
is true, that the common law courts have usually fixed terms,
and can exercise their powers only during the continuance of
these terms. In England, the termination as well as the be
ginning of the term is fixed by law. With us, the first day
only is fixed, and the courts, having commenced on the day fixed
by law, remain in session as long as the convenience of the oc
casion requires.

In early ages, the whole year was one continued term. After
the introduction of Christianity among the western nations of
Europe, the governments ordained that their courts should be
always open for the administration of justice; for the purpose,
among other things, of showing their disapprobation of the
heathen governments, by whom the dies fasti ct nefasti were
carefully, and, as they thought, superstitiously regarded. In
the course of time, however, the Church interfered, and suc
ceeded in rescuing certain seasons of the year which it deemed
holy time, such as Christmas and Easter, from the agitations
of forensic discussion. The necessities of rural labor after
wards added the harvest months to the number of the vaca-



DEFENCE OF JUDGE JAMES PRESCOTT. 521

tions. The vacations were thus carved out of the year, and
what was left was term. Thus, even with regard to the com-

O

mon law courts, the provisions respecting terms were made, not
so much for creating terms as for creating vacations. And for
this reason it probably is, that as well the termination as the
commencement of the term is established by law.

In respect to the spiritual courts, no such positive regula
tions, as far as I can learn, appear to have been made. Their
jurisdiction is one which seems necessarily to require more or
less of occasional, as well as stated exercise. The bishop s ju
risdiction over wills and administrations was not local, but per
sonal. Hence he might exercise it, not only when he pleased,
but where he pleased ; within the limits of his diocese or with
out. He might grant letters of administration, for instance,
while without the local limits over which his jurisdiction ex
tends, because it is a personal authority which the law ap
points him to exercise. " The power of granting probates is
not local, but is annexed to the person of the archbishop or
bishop ; and therefore a bishop, or the commissary of a bishop,
while absent from his diocese, may grant probate of wills re
specting property within the same ; or if an archbishop or
bishop of a province or see in Ireland happens to be in Eng
land, he may grant probate of wills relative to effects within his
province or diocese." *

Notwithstanding this, however, the canons ordain that the
ordinaries shall appoint proper places and times for the keep
ing of their courts ; such as shall be convenient for those who
are to make their appearance there. This is for the benefit of
suitors. The object is, that there may be some certain times
and places when and where persons having business to be
transacted may expect to find the judge ; and it by no means
necessarily takes away the power of transacting business at
other times and places. The ordaining of such a rule plainly
shows, that before it was made these judges held their courts
when and where they pleased, and only when and where they
pleased.

If we recur again to the history of this Commonwealth, we
shall find that what necessity or convenience had established in

* Toller, 66; 4 Burn, 285.

44*



522 DEFENCE OF JUDGE JAMES PRESCOTT.

England, the same necessity or convenience soon established
here. By the Colony charter no provision was made for a
court for the probate of wills and granting administrations. In
1639 it was ordained that there should be records kept of all
wills, administrations, and inventories.* In 1649 an act was



Online LibraryDaniel WebsterThe works of Daniel Webster (Volume 05) → online text (page 50 of 53)