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passed requiring wills to be proved at the county court which
should next be after thirty days from the death of the party ;
and that administration should be there taken, f

These county courts were courts of common law jurisdiction,
and were holden at stated terms. But experience seems soon:
to have shown that, from the nature of probate jurisdiction, its
exercise could not be conveniently confined to stated terms ; for
in 1652 an act was passed authorizing two magistrates, with the
recorder of the county court, to allow and approve of wills, and
grant administrations ; the clerk to cause the will or administration
to be recorded. The reason of passing this act is obvious.
The county court consisted of many magistrates. They as
sembled to form a court only at stated terms. On this court
the law had conferred the powers of probate of wills and grant
ing administrations ; and, like other business, it could of course
only be transacted at stated terms. This was found to be an in
convenience, and the law which I have cited was passed to rem
edy it. So that, instead of confining the exercise of the juris
diction of these courts to stated terms, we find the law has done
exactly the contrary. Not only the analogy which they bear to
other courts of similar jurisdiction, but our own history, and
the early enactments of the Colonial legislature, all conspire to
refute the notions which have been advanced, I cannot but
think somewhat incautiously advanced, on this occasion.

The provisions of the constitution requiring judges of pro
bate to hold their courts on certain fixed days is perfectly and
strictly consistent, nevertheless, with the occasional exercise of
their powers at other times. The law has had two objects in
this respect ; distinct, indeed, but consistent. One is, that there
should be certain fixed days when it should be the duty of the
judges to attend to the business of their offices and the applica
tions of suitors ; the other, that they might, when occasion re
quired, perform such duties and attend to such applications on

* Ancient Charters, 43. f Ibid. 204. % Ibid. 204.


other days. The learned managers seem to have regarded
these provisions of law as repugnant, whereas they appear to
us to consist perfectly well together.

If it were possible, Sir, that we were still mistaken in all this,
there is yet the provision of the special law of 1806, which
would seem to put an end to this part of the case. This stat
ute has been already stated ; its terms are express, and its object
plain beyond all doubt or ambiguity. Not only does this act
of itself afford the most complete justification to the respondent
in this case, but it proves also that either the legislature or the
learned managers have misunderstood the requisition of .the
constitution in regard to fixed days for holding probate courts.
My colleagues have put this part of the argument beyond the
power of any answer. I leave it where they left it.

With respect to notice to parties, I have already said that it is
not at all proved, or pretended to be proved, that there was any
person entitled to notice who did not receive it. It would be
absurd and preposterous now. to call on the respondent to give
positive proof of notice to all persons concerned. As it was his
duty to give such notice, it is to be presumed he did give it
until the contrary appear. Besides, as no omission to give no
tice is stated in the article as a fact rendering the court illegal,
how is he expected to come here prepared to prove notice ?

I have little to add, Sir, to what my learned colleague who
immediately preceded me has said respecting the necessity of
the registers attending these special courts. One of the learned
managers has said that the statute of 1806, which requires
notice to parties, requires notice also to the register. I see no
sort of reason for such a construction of the act. The words
are, that the judge may appoint such times and places for
holding his court as he shall deem expedient, giving public no
tice thereof, or notifying all concerned ; and have no relation to
the officers of the court. Neither the register, nor the crier, nor
the door-keeper is, I should imagine, within this province ; and
yet I suppose one to be as much within it as the other.

The presence of the register cannot be essential to the exist
ence of the court, any more than the presence of the clerk is
essential to the existence of any other court. Like other courts,
the court of probate has its clerk, called a register, but he is
no more part of the court than the clerk of the Supreme Judi
cial Court is a component part of that court.


No provision appears to have been made by the Province
laws for the appointment of a register. The ordinary, having
the whole power over the subject of the probate of wills and
granting administrations, might allow a clerk or register to his
surrogate or not, at his pleasure. It was necessary, of course,
that records should be kept, but this might be done by the
judge himself, as some other magistrates keep their own rec
ords. There are certain statutes which speak of the register s
office, but which seem only to mean the place where the rec
ords are kept. They contain no provision for the appointment
of such an officer, nor any description of his duties.* It ap
pears, as I am informed by the Suffolk probate records, that a
register was appointed by the Governor, by virtue of his power
as Supreme Ordinary, immediately after the issuing of the
Provincial charter. The first provision made by him for this
officer, if I mistake not, is contained in the statute of 1784,f
and the duties of the officer are well described in that act. He
is to be the register of wills and letters of administration, and
to be keeper of the records. His signature or assent is neces
sary to the validity of no act whatever. He is to record official
papers, and to keep the records and documents which belong to
the office.

It is quite manifest, from the law T s made under the charter
as well as those enacted since the adoption of the present gov
ernment, that the presence of the register has not been essential
to the existence of a legal probate court. The proof of this is,
that certain acts or things, by these statutes, may be done by
the judge without the register. By 6 Geo. I. ch. 3, it is pro
vided, that persons to take an inventory of one deceased shall
be appointed and sworn by the judge of probate, if the estate be
in the town where lie dwells, or within ten miles thereof , other
wise, by a justice of the peace.J By 4 Geo. II. ch. 3, apprais
ers are to be sworn by the judge, if the estate be within ten
miles of his dwelling-house. By the act of March, 1784,
when a minor lives more than ten miles from the judge s dwell
ing-house, his choice may be certified to the judge by a justice
of the peace. These several laws plainly contemplate the per
formance of certain acts by the judge, not at probate courts

* 4 Will, and Mary, ch. 2. f Massachusetts Laws, Vol. I. p. 155.

| Province Laws, p. 222. Ibid. p. 286.


holden at stated times, and without the presence or assistance
of the register.

And now, Sir, I have finally to remark, on the subject of
holding these special courts, the respondent is proved to have
followed the practice which he found established in the office
when he was appointed to it. The existence of this practice
is proved beyond all doubt or controversy by the evidence of
Dr. Prescott.

As to the holding of special courts, therefore, the respondent
rests his justification on what he conceives to be the general
principle of law, on the express provision of the statute, and
the usage which has been proved to exist before and at the
time when he came into the office.

The charge, Mr. President, in the first article, of taking ille
gal fees, has been fully considered by other counsel. I need not
detain the court by further comment. It is true that, for what
is called a set of administration papers, the respondent received
in this case five dollars and fifty-eight cents. It is true, also,
that for the same business done at a stated court the fees would
have been but three dollars and sixty cents. The reason for
this difference is fully stated in the respondent s answer. But it
is also true, that the usual sum at stated courts, namely, three
dollars and sixty cents, is made up by the insertion of fees for
sundry services not specified in the fee bill. Indeed, the learned
managers have not, as has been so often before observed, even
told us wiiat would have been the precise amount of legal fees
in this case. They appear to be marvellously shy of figures.
If the court adopt the opinion of the learned managers, that no
fees are due where none are specially provided, and that for
receiving fees in such cases an officer is impeachable, then
there is no doubt that the respondent may be impeached and
convicted for his conduct in regard to every administration
which he has granted for fifteen years ; and there is as little
doubt that, on that ground, any judge of probate in the Com
monwealth is impeachable ; as must be well known to every
member of this court, whether they suffer it to be proved horn
or not.

It is utterly impossible to know by this article itself in what
it was intended to charge the respondent with having received
illegal fees. Was it for the order of notice ? But the statute


allows no fee for that. Was it for granting administration?
But it is not stated whether it was a litigated case or not, and
therefore it cannot be known what he might lawfully receive.

It is not denied, however, that every paper executed by the
judge in this case, and every service performed by him, were
proper and necessary for the occasion. Even the learned man
agers have not contended that any thing could have been dis
pensed with. If, therefore, the amount did not exceed the usual
sum, it would seem past all controversy, that the respondent
stood justified, if he is right in the general grounds which have
been assumed. This question, then, is as to the right to the ad
ditional two dollars. This, I apprehend, stands on precisely the
same ground as his right to fees for services not set down in the
fee bill, namely, on the ground of a quantum meruit, or reasonable
compensation for labor performed. This special court was hold-
en expressly for the benefit of Tarbell, and at his instance and
request. He is charged only with the necessary and unavoida
ble expenses of the court ; expenses which must be borne either
by the judge himself, or by the party for whose benefit they were
incurred. It was not so much an extraordinary compensation
to the judge, but a reimbursement of expenses actually incurred
by him. Here again he is found only to have followed the es
tablished practice of the office. He has done no more than his
predecessor had done. It is clearly proved, that that predeces
sor did habitually hold these special courts on request, and that
the necessary expenses of proceeding therein before him did ex
ceed those of similar proceedings at the stated courts. There
can be no complaint, in this case, of the amount. If he had a
right to receive any thing, it must be conceded he did not receive
too much. A practice of this sort may lead to inconvenience ;
possibly to abuse ; but it did not originate with the respondent,
nor does it appear that abuse has followed it in his hands. If
he were authorized to hold these special courts, and if they were
necessarily attended with some augmentation of expense, it
would seem perfectly reasonable that those for whom the ex
pense was incurred should defray it. The books teach us, that
" an officer who takes a reward, which has been usual in certain
cases, for the more diligent or expeditious performance of his
duty, cannot be said to be guilty of extortion ; for otherwise it
would be impossible, in many cases, to have the law executed


with success." * These sums were paid voluntarily. The re
spondent in no proper sense demanded them. He did not refuse
to do his official duty till they were paid. So of those sums
paid for services not mentioned in the fee bill. Several of these
things might have been done by the party himself, or his coun
sel ; such as drawing petition, bond, and so forth. Yet it was
usual to have these papers prepared at the probate office, and
to pay for them, together with the other expenses. This being
the usual course of things, and the party complying with it
without objection, and paying voluntarily, there can be no rea
son. I think, to call it extortion. When the party applied, in this
case, for administration papers, he must be supposed to have ap
plied for what was usual. He received what every body else
had received for fifteen years, and he paid for what he received
at the customary rates, without objection. It ought to be con
sidered, therefore, as a voluntary payment.

In this respect the present case differs from that cited from Coke.
There the party refused to do an official act, till an illegal sum
was paid. It was an act which the party had a right to have per
formed, to have it then performed, and to have it performed for a
stated fee. Refusing to do his duty in this respect till other fees
were paid, the officer doubtless was guilty of extortion. But in
this case the money was paid voluntarily, for services rendered
voluntarily. Most of the services were not, strictly speaking, offi
cial services. As before observed, the petition, bond, and so forth,
might have been prepared elsewhere, if the party had so chosen.
If he had so chosen, and had produced those papers, regularly
prepared and executed, and the judge had then refused him a
grant of administration, until he had, nevertheless, purchased a
set of these papers out of the probate office, then this case would
have resembled the one quoted. As the facts are, I think there
is no resemblance.

I have thus far endeavored to show that the respondent s
conduct, in relation to fees, was legal. If we have failed in
this, the next question is, whether his conduct be so clearly ille
gal as to satisfy the court that it must have proceeded from cor
rupt motives. And it is to this part of our case that we sup
posed the evidence of what had been usual in other courts, and

* Bac. Abr., %< Extortion.


thought to be legal by other judges, would be strictly applicable
and highly important.

It was certainly our belief, that, as the respondent is accused
of receiving illegal and excessive fees, in cases where fees are
not limited by any positive law, the usage and practice of other
judges in similar cases, known to the whole Commonwealth,
and continued for many years, would be evidence on which the
respondent might rely to rebut the accusation of intentional
wrong. We have shown to this tribunal, that in an indictment
on this same statute, in the Supreme Judicial Court, evidence
of this sort was admitted, and the defendant acquitted on the
strength of it. We had supposed it a plain dictate of common
sense, that, where a judge was accused of acting contrary to law,
he might show, if he could, that he acted honestly, though mis
takenly, and to this end he might show that other judges had
understood the law in the same way as he had understood it.
And if he were able to show, not only that one judge, but many,
and infleed all judges, had uniformly understood the law as he
himself had, it would amount to a full defence. The learned
managers have opposed the introduction of this evidence ; and
have prevailed on this court to reject it. Setting out with the
proposition, that, by law, the respondent could receive no fees
where none are expressly provided by statute, they have followed
up this doctrine to the conclusion, that, if fees have been taken
in any such case by the respondent, he must be convicted, al
though he should be able to show, as he is able to show, that
every court and every judge in the State have supposed the law
to be otherwise than the managers now assert it, and have uni
formly acted upon that supposition. I am not, Sir, about to
enter into another discussion on this point. I am persuaded it
would be fruitless. The questions which we proposed to put to
the witnesses are in writing, and therefore cannot easily be mis
represented. The court has, on the objection of the managers,
overruled these questions, and shut out the evidence. As a
matter decided in the cause, and for the purposes of the cause,
we must, of course, submit to the decision. Still the question
recurs, If the known usage and practice of the courts offered no
rule or guide by which the respondent was to direct his con
duct in relation to fees for services not enumerated in the fee
bill, what rule was to direct him ? What is the law which he


has broken ? We ask for the rule which ought to have gov
erned his conduct and has not governed it; we receive for an
swer nothing intelligible but this, that where the statute has
not expressly given fees, no fees are due, and it is illegal and
impeachable to receive them. If the court should be of that
opinion, a case is made out against the respondent. If it
should not be of that opinion, as we trust it will not, then we
submit that .no case has been made out against him on this

As to the charge of having refused to give Tarbell an account
of items or particulars of the fees demanded, it is enough to
say the charge is not proved. On his cross-examination the
witness would not state that he asked for items or particulars.
He appears simply to have wished a general voucher, to show
what sums he had paid for expenses in the probate office, and
to have been told that such voucher was not necessary, as the
sums would be of course allowed in his account.

I now ask, Sir, where is the proof of corruption, in relation to
any of the matters charged in this first article ? Where is the
moral turpitude, which alone ought to subject the respondent
to punishment? Is there any thing in the case which looks like
injustice or oppression? As to the special courts, holden for
the convenience of the party, no injury arose from them to any
body. The witness himself says they were a great accommo
dation to him, and saved the estate much money. One learned
manager has said that these courts may lead to inconvenience
and abuse. He has taxed his ingenuity to conjecture, rather than
to show, what possible evils might hereafter arise from them.
Yet he does this with the statute open before him, which ex
pressly authorizes these courts, and the repeal of which would
seem to be the proper remedy to relieve him from his appre

On the whole, Sir, I trust that the respondent has been able
to give a satisfactory answer to every thing contained in the
first article ; that he is not only not legally proved to be guilty,
but that his conduct was in all respects unblamable and in
offensive ; and that he will go from this trial, not only acquit
ted of the charges in the article, but also without having suf
fered in his reputation from the investigation which it has oc

VOL. v. 45


Mr. President,* the remarks which been made on the first
article are generally applicable to the four succeeding, and ren
der it unnecessary to comment on those articles, separately and

The sixth article turns out to be so little supported by any
proof, that I do not deern it necessary to add to what has been
said upon it. * The testimony of Dr. Prescott, and the date of
the letter produced, set this long-forgotten occurrence in its true

The seventh article appears to me to be a mere nullity. It
charges no official misconduct whatever. The learned man
agers, I suppose, are of the same opinion, otherwise they would
have been content with our admission of the article as it stands,
and not have contended so ardently for the privilege of proving
what was not stated. I have found myself, Sir, more than once
mistaken, in the course of this trial, but have not felt more sensi
ble of my own mistakes, on any occasion, than when I found
myself wrong in supposing that neither the learned managers,
nor any other lawyers, could be found to contend, that in a
criminal case more could be proved against a defendant than
had been stated; and that it was not enough for such defendant
to admit the truth of the facts in the w r ritten allegation against
him, precisely as they stood, and to demand the judgment of
the court thereon. The constitution says that every man s
offence shall be fully and plainly, substantially and formally, de
scribed and set forth. The learned managers seem so to con
strue this provision, as that, nevertheless, if facts be not alleged
which show any offence at all to have been committed, still
other facts may be found, under the words unlawfully and cor
ruptly, which shall amount to an offence.

This seventh article charges the respondent with no misbe
havior as a judge. The only offence imputed to him is one
which he is said to have committed as an attorney. These
overshadowing words, " unlawfully and corruptly," beneath the
protection of which the learned managers have sought to shelter
themselves, are applied to the respondent s conduct simply as
an attorney at law, and not as judge of probate. It is proved,
in point of fact, that the respondent performed certain merely
clerical labor for a guardian, for which he was paid a reason
able and moderate compensation. The sum thus paid him was


allowed, and as we suppose justly allowed, in the subsequent
settlement of the guardian s account.

The eighth, ninth, tenth, eleventh, thirteenth, and fourteenth
articles have been fully considered by my colleagues, and I will
not detain the court by adding any thing to what they have said.

It is the twelfth of these articles, Sir, on which the learned
managers seem most confidently to rely. Whatever becomes
of the rest of the case, here, at least, there is thought to be a
tenable ground. Here is one verdant spot, where impeachment
can flourish ; a sort of oasis, smiling amid the general deso
lation which the law and the evidence have spread round the
residue of these charges.

I confess, Sir, that I approach the consideration of this article
not without some apprehension. But that apprehension arises
from nothing in the real nature of the charge, or in the evidence
by which it is supported. My apprehension and alarm arise
from this ; that in a criminal trial, on a most solemn and im
portant occasion, so much weight should be given to mere
coloring and declamation, under the form of a criminal accu
sation. In my judgment, Sir, there is serious cause of alarm,
when, in a court of this character, accusations are brought
forward so exceedingly loose and indefinite, and arguments
are urged in support of them so little resembling what we
are accustomed to hear in the ordinary courts of criminal juris

The offence in this article, whatever it be, instead of being
charged and stated in ordinary legal language, is thrown in
to the form of a narrative. A story taken from the mouth of
a heated, angry, and now contradicted witness, is written down
at large, with every imaginable circumstance of aggravation
likely to strike undistinguishing minds ; and this stoiy, thus
told, is the very form in which the article is brought. Here we
have, in the article itself, a narrative of all the evidence ; we
have a dialogue between the parties, and are favored so far
as to be shown, by marks of quotation, what sentiments and
sentences belong to the respective parties in that dialogue. All
convenient epithets and expletives are inserted in this dialogue.
We find the "urgent and repeated" demand of the respondent
for fees. We perceive, also, that he is made to lead the conver
sation, on all occasions. He proposed to advise and instruct ;


he proposed to allow the sum in the account ; and it was,
again, on his proposal so to insert it, that it was paid. He is
represented as wanting in manners and decorum, as well as in
official integrity. It is said he overheard a conversation ; and
that therefore he prepared to give his advice, before it was asked.
In short, Sir, this article contains whatever is most likely to cause

Online LibraryDaniel WebsterThe works of Daniel Webster (Volume 05) → online text (page 51 of 53)