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the respondent to be convicted before he is heard. I do most
solemnly protest against this mode of bringing forward criminal
charges. I put it to the feeling of every honorable man, wheth
er he does not instinctively revolt from such a proceeding? In
a government so much under the dominion of public opinion,
and in a case in which public feeling is so easily excited, I
appeal to every man of an honorable and independent mind,
whether it be not the height of injustice to send forth charges
against a public officer, accompanied with all these circumstan
ces of aggravation and exasperation ? Here the evidence, as
yet altogether ex parte, the story told by a willing, if not a preju
diced witness, goes forth with the charge, embodied in the
charge itself, without any distinction whatever between what is
meant to be charged as an offence, and the evidence which is to
support the charge. For my own part, Sir, I can conceive of
nothing more unjust. Would it be tolerated for one moment in
a court of law, I beg to ask, that a prosecutor, departing from all
the usual forms of accusation, should tell his own story, in his
own way, mix up his evidence with his charges, and his own
inferences with his evidence, so that the accusation, the evidence,
and the argument should all go together ? A judge would well
deserve impeachment and conviction who should suffer such an
indictment to proceed.

In this case, the whole matter might have been stated in five
lines. It is simply this, and nothing more ; namely, that the
respondent, wishing, as an attorney, to obtain certain fees from
a guardian, promised, if they were paid, to allow them in the
guardianship account, as judge ; and being paid, he did so al
low them. This is the whole substance and essence of the
charge.

Notwithstanding our entire confidence in this court, we can
not but know that the respondent comes to his trial on this ar
ticle under the greatest disadvantages. There is not a member
of the court, nor a reading man in the community, who has



DEFENCE OF JUDGE JAMES PRESCOTT. 533

not read this charge, and thereby seen at once the accusation,
and the evidence which was to support it. The whole story is
told, with all the minute circumstances, and no ground is left
for the reservation of opinion, or whereupon charity itself can
withhold its condemnation. Far be it from me, Sir, to impute
this to design. I know not the cause ; but, so far as the re
spondent is concerned, I know it would have been just as fair
and favorable to him, if the original ex parte affidavit, upon
which the article was founded, had been headed as No. 12,
and inserted among the articles of impeachment. This, Sir, is
the true ground of the alarm which I feel, in regard to this
charge ; an alarm, I confess, not diminished by perceiving that,
this article is so great a favorite with the learned managers ;
for when obliged to give up one and another of their accu
sations, they have asked us, with an air of confidence and ex
ultation, whether we expect them to give up the twelfth article
also.

I will now, Sir, with your permission, proceed to consider
whether this article states any legal offence. Stripped of every
thing but what is material, it appears to me to amount to
no more than this, viz. : 1. That the respondent gave profes
sional advice to a guardian, about the concerns of his ward, and
received fees for it. 2. That he allowed those fees in the guar
dianship account. If this be the substance of the article, then
the question follows the division which I have mentioned, and
is, 1. Whether he had a right to give such advice, and to be
paid for it ; and, 2. Whether he had a right to allow the sum
so paid in the guardian s account. I think these are the only
questions to be considered. It cannot be material, certainly,
whether Ware, the guardian, paid the fee willingly or unwill
ingly. It is certain that the respondent received it. If he had
no right to it, then he must take the consequences ; if he had
a right to it, then there was nothing wrong but Ware s want of
promptitude in paying it. Nor is it of any importance, sup
posing him to be right in allowing this fee in the guardian s
account, whether he interlined the charge in an account already
drawn out, or had the account drawn over, that it might be in
serted. Here, again, we find a circumstance of no moment in
itself set forth so as to be prominent and striking, in this charge,
and likely to produce an effect. It is said that the sum was al-
45*



534 DEFENCE OF JUDGE JAMES PRESCOTT.

lowed by interlineation; as if the respondent had committed one
crime to hide another, and had been guilty of forgery to cover up
extortion. Sir, not only for the sake of the respondent, but for
the sake of all justice, and in behalf of all impartiality and can
dor, I cannot too often or too earnestly express my extreme re
gret at the manner in which this charge is made. On a paper
not yet finished and recorded, what harm to make an altera
tion, if it be of a thing in itself proper to be done ? Is it not
done every day, in every court ? Not only affidavits, processes,
and other legal papers, but also minutes, decrees, and judg
ments of the court, before they are recorded, are constantly
altered by interlineation, by the court itself, or its order. The
paper was in this case before the judge. It had not been re
corded. If any new claim had then been produced, fit to be
allowed, it was proper to allow it, and certainly not criminal to
insert the allowance by interlineation.

If, Sir, the substance of every thing done by the respondent
in this case is lawful, then there never can justly be a crimi
nal conviction founded on the mere manner of doing it ; even
though the manner were believed to be as improper and indeco
rous as Ware would represent it. There is, therefore, no real
inquiry in this case, as I can perceive, but whether the respond
ent had a right to give advice, and to be paid for it; and
whether he had a right to allow it in the account.

And, in the first place, Sir, had the respondent a right to give
professional advice to this guardian respecting the estate of his
ward ?

It has frequently, perhaps as often as otherwise, happened,
that judges of probate have been practising lawyers. The
statute-book shows that it has all along been supposed that
this might be the case. There are acts which declare that in
particular, specified cases, such as appeals from their own judg
ments, they shall not act as counsel ; implying, of course, that
in other cases they are expected so to act, if they see fit. Until
the law of 1818, there was nothing to prevent them from being
counsel for executors, administrators, and guardians, as well as
any other clients. My colleague who first addressed the court
has fully explained the history and state of the law in this par
ticular. There being, then, no positive prohibition, is there any
thing in the nature of the case that prevents, or should prevent,



DEFENCE OF JUDGE JAMES PRESCOTT. 535

in all cases, a judge of probate from rendering professional as
sistance to executors, administrators, or guardians. I say in
all cases, and supposing no fraudulent or collusive intention.
The legislature has now passed a law on this subject, which is
perhaps very well as a general rule, and now, of course, binding
in all cases. But it can hardly be contended that, before the
passing of this law, a judge of probate could in no case give
professional advice to persons of this character. I admit,
most readily, Sir, that, if a case of collusion or fraud were
proved, it would deserve impeachment. If the judge and the
guardian conspired to cheat the ward, a criminal conviction
would be the just reward of both. They would go into utter
disgrace together, and nobody would inquire which was the
unjust judge, and which the fraudulent guardian; "which was
the justice, and which was the thief." But in a case of fair
and honest character, where the guardian needed professional
advice and the judge was competent to give it, I see no legal
objection. No doubt, a man of caution and delicacy would
generally be unwilling to render professional services upon the
value of which he might be afterwards called upon officially to
form an opinion. He would not choose to be under the neces
sity of judging upon his own claim. Still, there would seem to
be no legal incompatibility. He must take care only to judge
right. In various other cases, judges of probate are or may be
called on to make allowances for moneys paid to themselves.
It is so in all cases of official fees. It might be so, also, in the
case of a private debt due from the estate of a ward to a judge
of probate. If, in this very case, there had been a previous
debt due from Ware s ward to the respondent, might he not
have asked Ware to pay it ? Nay, might he not have " de
manded" it? Might he not even have ventured to make an
"urgent and repeated request" for it? And if he had been so
fortunate as to obtain it, might he not have allowed it in
Ware s guardianship account? And although he had been
presumptuous enough to insert it, by interlineation, among
other articles in the account, before it was finally allowed and
passed, instead of drawing off a new account, would even this
have been regarded as flagrant injustice or high enormity?
Now, I maintain, Sir, that the respondent had in this case a
right to give professional advice, and a right to be paid for it;



536 DEFENCE OF JUDGE JAMES PRESCOTT.

and until paid his claim was a debt due him from the ward s
estate, which he might treat like any other debt. He might re
ceive it as a debt, and then, as a debt paid, allow it. in the
guardian s account.

As before observed, the first question is, whether he could
rightfully give this advice. It was certainly a case in which it
was proper for the guardian to take legal advice of somebody.
The occasion called for it, and we find the estate to have been
essentially benefited by it. It is among the clearest duties of
those who act in situations of trust to take legal advice when
ever it is necessary. If they do not, and loss ensues, they
themselves, and not those whom they represent, must bear that
loss. There can be no clearer ground on which to make exec
utors, administrators, and guardians personally liable for losses
which happen to estates under their care, than negligence in
not obtaining legal advice when necessary and proper. If, in
stead of giving this fee to the respondent, the guardian had
given it to any other professional man, would any body have
thought it improper ? I presume no one would. Then, what
was there in the respondent s situation which rendered it im
proper for him to give the advice ? It concerned no matter that
could come before him. It was wholly independent of any
proceeding that had arisen, or could arise, in his court. It inter
fered in no way with his judicial duty, any more than it would
have done to give the same advice to the ward himself, before
the guardianship. He had, then, as good right to give this
advice to the guardian as he would have had to give it to the
ward.

And, Sir, in the second place, I think it plain that, if he had
a right to give the advice, and to be paid for it, he had not
only the right, but was bound, to allow it in the guardian s ac
count. This article is attempted to be supported altogether by
accumulating circumstances, no one of which bears resem
blance to any thing like a legal offence. Is the respondent to
be convicted for having given the advice ? " No," it is said,
; not that alone, but he demanded a fee for it." Is he to be
convicted, then, for giving advice, and for demanding a fee for
it, it not being denied that it was a fit occasion for somebody s
advice ? " No, not convicted for that alone, but he insisted on
a fee, and was urgent and pressing for it," If he had a right



DEFENCE OF JUDGE JAMES PRESCOTT. 537

to the fee, might he not insist upon it, and be urgent for it, till
he got it, without a violation of law? "Bat then he promised
to allow it in the guardian s account, and obtained it by means
of this promise, and did afterwards allow it." Bat if it ought
to be paid, and the guardian paid it, ought it not to be allowed
in his account, and could it be improper for the respondent to
say he should so allow it, and actually so to allow it ? " But
did he not allow it by interlineation ? " What sort of inter
lineation ? The account was before him, unrecorded ; this came
forward as a new charge ; and for convenience, and to save labor,
it was inserted among other charges, without making a copy of
the paper; and this is all the interlineation there is in the case.

I now ask you, Sir, I put it to every member of this court,
upon his oath and his conscience, to say to which of these cir
cumstances the guilt attaches. Where is the crime ? If this
charge had been carried to the account without interlineation,
would the respondent have been guiltless ? If not, then the
interlineation does not constitute his guilt. If the fee had been
paid to some one else, and then allowed, in the same manner it
was allowed, would the respondent have been guiltless ? If so,
then the crime is not in the manner of allowing the charge. If
the guardian had urged and pressed for the respondent s advice,
and in receiving it had paid for it willingly and cheerfully, and
it had been properly allowed in the account, would the respond
ent then have been guiltless ? If so, then his mere giving
advice, and taking fees for it of a guardian, does not constitute
his crime. In this manner, Sir, this article may be analyzed,
and it will be found that no one part of it contains the criminal
matter, and if there be crime in no one part, there can be no
crime in the whole. It is not a case of right acts done with
wrong motives, which sometimes may show misconduct, all
taken together, although each circumstance may be of itself

O *

indifferent. Here is official corruption complained of. We ask
in what it consists. We demand to know the legal offence
which has been committed. A narrative is rehearsed to us, and
we are told that the result of that must be conviction ; but on
what legal grounds, or for what describable legal reason, I am
yet at a loss to understand.

The article mentions another circumstance, which, whether
true or false, must exceedingly prejudice the respondent, and



538 DEFENCE OF JUDGE JAMES PRESCOTT.

yet has no just bearing on the case. It is said the respondent
told Ware, that, if he would pay this fee, the " overseers need
know nothing about it." Now, Sir, what had the overseers to
do with this ? No more than the town crier. Those parts of the
account which consisted of expenses incurred in their neighbor
hood were properly enough, though not necessarily, subjected
to their examination. They had an interest in having the ac
count right, and their approbation was a convenient voucher.
But what had they to do with the propriety of the guardian s
taking legal advice, for the benefit of his ward? They could
not judge of it, nor were they to approve or disapprove his
charge for obtaining such advice. Why, then, I ask, Sir, was
this observation about the overseers introduced, not only as evi
dence, but into the body of the charge itself, as making a part
of that charge ? What part of any known legal offence does
that observation, or others like it, constitute ? Nevertheless, Sir,
this has had its effect, and in my opinion a most unjust effect.

I will now, Sir, beg leave to make a few remarks on the evi
dence adduced in support of this article. Of those facts which
I have thought alone material, there is no doubt ; about them
there is no dispute. It is true, that the respondent gave the
advice, and received the fee, and allowed it in the account. If
this be guilt, he is guilty. As to every thing else in the articles,
as to all those allegations which go to degrade the respondent,
and in some measure affect his reputation as a man of honor
and delicacy, they rest on Ware, and on Ware alone. Now,
Sir, I only ask for the respondent the common advantages
allowed to persons on trial for alleged offences. I only entreat
for him from this court the observance of those rules which pre
vail on all other occasions, in respect to the construction to be
given to evidence, and the allowances which particular consid
erations render proper.

It is proved that this witness has had a recent misunderstand
ing with the respondent, and that he comes forward only since
that misunderstanding to bring this matter into public notice.
Threats of vengeance, for another supposed injury, he has been
proved to have uttered more than once. This consideration
alone should lead the court to receive his evidence with great
caution, when he is not swearing to a substantial fact, in which
he might be contradicted, but to the manner of a transaction.



DEFENCE OF JUDGE JAMES PRESCOTT. 539

Here is peculiar room for misrepresentation, and coloring, either
from mistake or design. What a public officer does can be
proved ; but the mere manner in which he does it, every word
he may say, every gesture he may make, cannot ordinarily be
proved ; and when a witness comes forth who pretends to re
member them, whether he speaks truth or falsehood, it is most
difficult to contradict him. It is in such a case, therefore, that a
prejudiced witness should be received \vith the utmost caution
and distrust.

There is, Sir, another circumstance of great weight. This is
a very stale complaint. It is now nearly six years since this
transaction took place. "Why has it not been complained of
before ? There is no new discovery. All that is known now
was known then. If Ware thought of it then, as he thinks of
it now, why did he not complain then ? What has caused his
honest indignation so long to slumber ? Has it not evidently
been roused only by a quarrel with the respondent?

Let me ask, Sir, what a grand jury would say to a prosecutor,
who, with the full knowledge of all the facts, should have slept
over a supposed injury for six years, and should then come for
ward to prefer an indictment ? What would they say especially
if they found him apparently stimulated by recent resentment,
and prosecuting, for one supposed ancient injury, with the heat
and passion excited by another supposed recent injury? Sir,
they would justly look on his evidence with suspicion, and
would undoubtedly throw out his bill. Justice would demand
it; and in my humble opinion justice demands nothing less on
the present occasion.

But, Sir, there is one rule of a more positive nature, which I
think applicable to the case ; and that is, that a witness detected
in one misrepresentation is to be credited in nothing. This rule
is obviously founded in the plainest reason, and it would be
totally unsafe to disregard it. Now if there be any one part of
Ware s testimony more essential than all the rest, as to its
effect in giving a bad appearance to the respondent s conduct, it
is that in which he testifies that the respondent volunteered in
the case, and offered his advice before it was asked. This is a
most material part of the whole story ; it is indispensable to the
keeping of the picture which the learned managers have drawn.
And yet, Sir, in this particular Ware is distinctly and positively



540 DEFENCE OF JUDGE JAMES PRESCOTT.

contradicted by Grout. Now if we were in a court of law,
a jury would be instructed, that, if they believed Ware had
wilfully deviated from the truth in this respect, nothing which
rested solely on his credit would be received as proved. We
ask for the respondent, in this, as in other cases, only the com
mon protection of the law. We require only that those rules
which have governed other trials may govern his ; and accord
ing to these rules, I submit to the court that it cannot and ought
not to convict the respondent, even if the facts sworn to would,
if proved, warrant a conviction, upon the sole testimony of this
witness. Even if we were sure that there were no other direct
departure from the truth, yet in the whole of his narrative, and
the whole of his manner, we see, I think, indications of great
animosity and prejudice. If the whole of this transaction were
to be recited by a friendly or a candid witness, I do not believe
it would strike any body as extraordinary. Any mode of telling
this story which shall confine the narrative to the essential facts,
will leave it, in my humble opinion, if not a strictly proper, yet
by no means an illegal or impeachable transaction. Let it be
remembered that a great part of his story is such as cannot
be contradicted, though it be false, inasmuch as it relates to
alleged conversations between him and the respondent when
nobody else was present. Wherever the natural means exist
of contradicting or qualifying his testimony, there it is accom
plished. Whatever circumstance can be found bearing on it
shows that it is in a greater or less degree incorrect. For ex
ample, Ware would represent that it was an important part
of this arrangement to keep the payment of the fee from the
knowledge of the overseers. This was the reason why the
charge was to be inserted in the existing account, by interlinea
tion. Yet the evidence is, that a complete copy of this very
interlined account was carried home by Ware, where the over
seers could see it, and would of course perceive exactly what
had been done. This is utterly inconsistent with any purpose
of secrecy or concealment.

Making just and reasonable allowances for the considerations
which I have mentioned, I ask, is any case proved, by the rules
of law, against the respondent? And further, Sir, taking the
facts only which are satisfactorily established, and supposing the
respondent s conduct to have been wrong, is it clearly shown



DEFENCE OF JUDGE JAMES PRESCOTT. 541

to have been intentionally wrong ? If he ought not to have
given the advice, is it any thing more than an error of judg
ment ? Can this court have so little charity for human nature,
as to believe that a man of respectable standing could act cor
ruptly for so paltry an object? Even although they should
judge his conduct improper, do they believe it to have originated
in corrupt motives ? For my own part, Sir, notwithstanding all
that prejudices and prepossession may have done, and all that the
most extraordinary manner of presenting this charge may have
done, I will not believe, till the annunciation of its judgment
shall compel me, that this court will ever convict the respondent
upon this article.

I now beg leave to call the attention of the court to one or
two considerations of a general nature, and which appear to me
to have an important bearing on the merits of this whole cause.
The first is this, that from the day when the respondent was
appointed judge of probate, down to the period at which these ar
ticles of impeachment close, from the year 1805 to 1821, there is
not a single case, with the exception of that alleged by Ware, in
which it is even pretended that any secrecy was designed or at
tempted by the respondent ; there is not a single case in which
he is even accused of having wished to keep any thing out of
sight, or to conceal any fact in his administration, any charge
which he had made, or any fee which he had taken. The evi
dence on which you are to judge him is evidence furnished by
himself; and instead of being obliged to seek for testimony in
sources beyond the respondent s control, it is his own avowed
actions, his public administration, and the records of his office,
which the managers of the prosecution alone have been able to
produce. And yet he is charged with having acted wilfully and
corruptly ; as if it were possible that a magistrate, in a high and
responsible station, with the eyes of the community upon him,
should, for near twenty years, pursue a course of corrupt and
wilful maladministration, of which every act and every instance
were formally and publicly put on record by himself, and laid
open in the face of the community. Is this agreeable to the laws
of human nature ? Why, Sir, if the respondent has so long been
pursuing a course of conscious, and wilful, and corrupt malad
ministration, why do we discover none of the usual and natural

VOL. v. 46



542 DEFENCE OF JUDGE JAMES PRESCOTT.

traces of such a course, some attempt at concealment, some effort at
secrecy? And in all the numberless cases in which he had oppor
tunity and temptation, why is not even a suspicion thrown out,
that he has attempted to draw a veil of privacy over his alleged



Online LibraryDaniel WebsterThe works of Daniel Webster (Volume 05) → online text (page 52 of 53)