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extortions ? Is it in reason that you should be obliged to go to
his own records for the proof of his pretended crimes ? And can
you, with even the color of probability, appeal to a course of ac
tion unsuspiciously pursued in the face of Heaven, to support
an accusation of offences in their very nature private, concealed,
and hidden ?

Another consideration of a general nature to which I earnestly
ask the attention of this honorable court is this, that after all
these accusations which have been brought together against the
respondent, in all these articles of impeachment, and with all
the industry and zeal with which the matter of them has been
furnished to the honorable managers, he is not accused, nor
suspected, of the crime most likely to bring an unjust judge to
the bar of this court. Show me the unjust judgment he has
rendered, the illegal order he has given, the corrupt decree he has
uttered, the act of oppression he has committed. What, Sir, a
magistrate, charged with a long and deliberate perseverance in
wilful and corrupt administration, accused of extortion, thought
capable of accepting the miserable bribe of a few cents or a few
dollars for illegal and unconstitutional acts, and that, too, in an
office presenting every day the most abundant opportunities,
and, if the respondent were of the character pretended, the most
irresistible temptation, to acts of lucrative injustice ; and yet not-
one instance of a corrupt, illegal, or oppressive judgment ! I do
ask the permission of this honorable court, and of every member
of it, to put this to his own conscience. I will ask him, if he
can now name a more able and upright magistrate, as shown
in all his proceedings and judgments, in all the offices of pro
bate in the State; one whose records are more regularly and
properly kept, whose administration is more prompt, correct, and
legal, whose competency to the duties is more complete, whose
discharge of them is more punctual. I put this earnestly, Sir,
to the conscience of every member of this honorable court. I
appeal more especially to my honorable friend,* intrusted with
a share of the management of this prosecution, and who has

* Hon. S. P. P. Fay.



DEFENCE OF JUDGE JAMES PRESCOTT. 543

been for twenty years an inhabitant of the county of Middlesex.
I will appeal to him, Sir, and I will ask him whether, if he knew
that this night his wife should be left a widow and his chil
dren fatherless, there is a magistrate in the State in whose
protection he had rather they should be left, than in that of the
respondent ? Forgetting for a moment that he is a prosecutor,
and remembering only that he is a citizen of the same county,
a member of the same profession, with an acquaintance of twen
ty years standing, I will ask him if he will say that he believes
there is a county in the State in which the office of judge of
probate has been better administered for t\venty years, than it
has been in the county of Middlesex by this respondent. And
yet, Sir, you are asked to disgrace him. You are asked to fix
on him the stigma of a corrupt and unjust judge, and condemn
him to wear it through life.

Mr. President, the case is closed ! The fate of the respondent
is in your hands. It is for you now to say, whether, from the
law and the facts as they have appeared before you, you will
proceed to disgrace and disfranchise him. If your duty calls
on you to convict him, let justice be done, and convict him;
but, I adjure you, let it be a clear, undoubted case. Let it be
so for his sake, for you are robbing him of that for which, with
all your high powers, you can yield him no compensation ; let
it be so for your own sakes, for the responsibility of this day s
judgment is one which you must carry with you through life.
For myself, I am willing here to relinquish the character of
an advocate, and to express opinions by which I am prepared
to be bound as a citizen and a man. And I say upon my
honor and conscience, that I see not how, with the law and
constitution for your guides, you can pronounce the respond
ent guilty. I declare that I have seen no case of wilful and
corrupt official misconduct, set forth according to the requisi
tions of the constitution, and proved according to the common
rules of evidence. I see many things imprudent and ill-judged;
many things that I could wish had been otherwise ; but corrup
tion and crime I do not see.

Sir, the prejudices of the day will soon be forgotten; the
passions, if any there be, which have excited or favored this
prosecution will subside ; but the consequence of the judgment
you are about to render will outlive both them and you. The
respondent is now brought, a single, unorotected individual, to



544 DEFENCE OF JUDGE JAMES PRESCOTT

this formidable bar of judgment, to stand against the power
and authority of the State. I know you can crush him, as he
stands before you, and clothed as you are with the sovereignty
of the State. You have the power "to change his counte
nance and to send him away." Nor do I remind you, that
your judgment is to be rejudged by the community ; and, as
you have summoned him for trial to this high tribunal, that
you are soon to descend yourselves from these seats of justice,
and stand before the higher tribunal of the world. I would not
fail so much in respect to this honorable court as to hint that it
could pronounce a sentence which the community will reverse.
No, Sir, it is not the world s revision which I would call on you
to regard ; but that of your own consciences, when years have
gone by and you shall look back on the sentence you are about
to render. If you send away the respondent, condemned and
sentenced, from your bar, you are yet to meet him in the world
on which you cast him out. You will be called to behold him
a disgrace to his family, a sorrow and a shame to his children,
a living fountain of grief and agony to himself.

If you shall then be able to behold him only as an unjust
judge, whom vengeance has overtaken and justice has blasted,
you will be able to look upon him, not without pity, but yet
without remorse. But if, on the other hand, you shall see, when
ever and wherever you meet him, a victim of prejudice or of
passion, a sacrifice to a transient excitement ; if you shall see in
him a man for whose condemnation any provision of the consti
tution has been violated or any principle of law broken down,
then will he be able, humble and low as may be his condition,
then will he be able to turn the current of compassion back
ward, and to look with pity on those who have been his judges.
If you are about to visit this respondent with a judgment
which shall blast his house ; if the bosoms of the innocent and
the amiable are to be made to bleed under your infliction, I
beseech you to be able to state clear and strong grounds for
your proceeding. Prejudice and excitement are transitory, and
will pass away. Political expediency, in matters of judicature,
is a false and hollow principle, and will never satisfy the con
science of him who is fearful that he may have given a hasty
judgment. I earnestly entreat you, for your own sakes, to pos
sess yourselves of solid reasons, founded in truth and justice,
for the judgment you pronounce, which you can carry with you



DEFENCE OF JUDGE JAMES PRESCOTT. 545

till you go down into your graves ; reasons which it will require
no argument to revive, no sophistry, no excitement, no regard to
popular favor, to render satisfactory to your consciences ; rea
sons which you can appeal to in every crisis of your lives, and
which shall be able to assure you, in your own great extremity,
that you have not judged a fellow-creature without mercy.

Sir, I have done with the case of this individual, and now
leave it in your hands. But I would yet once more appeal
to you as public men ; as statesmen ; as men of enlightened
minds, capable of a large view of things, and of foreseeing the
remote consequences of important transactions ; and, as such, I
would most earnestly implore you to consider fully of the judg
ment you may pronounce. You are about to give a construc
tion to constitutional provisions which may adhere to that in
strument for ages, either for good or evil. I may perhaps over
rate the importance of this occasion to the public welfare ; but
I confess it does appear to me that, if this body give its sanction
to some of the principles which have been advanced on this
occasion, then there is a power in the State above the constitu
tion and the law; a power essentially arbitrary and despotic,
the exercise of which may be most dangerous. If impeach
ment be not under the rule of the constitution and the laws,
their may we tremble, not only for those who may be im
peached, but for all others. If the full benefit of every consti
tutional provision be not extended to the respondent, his case
becomes the case of all the people of the Commonwealth.
The constitution is their constitution. They have made it
for their own protection, and for his among the rest. They are
not eager for his conviction. They desire not his ruin. If he
be condemned, without having his offences set forth in the
manner which they, by their constitution, have prescribed, and
in the manner which they, by their law?, have ordained, then
not only is he condemned unjustly, but the rights of the whole
people are disregarded. For the sake of the people themselves,
therefore, I would resist all attempts to convict by straining the
laws or getting over their prohibitions. I hold up before him
the broad shield of the constitution; if through that he be
pierced and fall, he will be but one sufferer in a common ca
tastrophe.

END OF VOLUME FIFTH.



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