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ARGUMENT

IN THE IMPEACHMENT OF JAMES PRESCOTT, BEFORE THE SENATE OF MASSACHUSETTS.—1821.

A Petition having been presented to the House of Representatives of the Commonwealth of Massachusetts, praying an inquiry into the official conduct of James Prescott, Esquire, Judge of Probate of Wills, &c. for the County of Middlesex, and charging him with misconduct anil maladministration in office; and Inning been referred to a committee, who reported a statement of facts, together with resolutions, setting forth that the said Prescott ought to lie impeached therefor, at the bar of the Senate of the Commonwealth—on the 2d day of Februarv, 1821, an order was passed accordingly, and die Senate demanded to take measures for his iaipeaehinent and appearance to answer thereto. A committee was thereupon ap[x,inted to prepare and report articles of impeachment. And Johu t.iU'n King, Lew Lincoln, William Baylies, Warren Dutton, Samuel P. P. Fay, Lemuel Shaw and Sherman Lclund, Esquires, were appointed Managers. Fifteen Articles of IinpeachmciK were exhihited and read.

The Articles substantially charged him with holding Probate Courts for transacting business at other times than those authorised by law, demanding 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 tlie Respondent's answer to the Articles of Impeachment, and hearing the evidence in support of and against the same; Messrs. Leland, Shaw and Dutton argued the case in behalf of the Managers. Mr. Hoar then opened the argument, on the part of the Respondent, Mr. Blake followed, and was succeeded by Mr. Webster, who spoke as follows:—

Mr. Presidenv,—I agree with the Hon. Managers, in the importance which they have attributed to this proceeding. They have, I think, not at all overrated that importance, nor ascribed to the occasion, a solemnity which does not belong to it. Perhaps, however, I diller 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 result. The Respondent has as deep a stake, no doubt, m this trial, as he can well have in anything 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 nothing but a consciousness of upright intention could enable him to endure. Yet, sir, a few years will curry 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 existence, when principles of action are adopted, and character is formed. The Hon. Respondent will not be the principal sufferer, if he should here fall a victim to charges •; undefined and undefinable offences, to loose notions of constituuonal law, or novel rules of evidence. By the necessary retribution of things, the evil of such a course would fall most heavily on the Staie which should pursue it, by shaking its character for justice, and impairing 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. Governments 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 prmciples 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 temporary excitement; an example, indicating in all those who bear a leading part in the proceedings, a spirit, fitted for a judicial trial, and proper for men who act with an enlightened and firm regard to the permanent interests of public constitutional liberty. To preserve the Respondent in the office which he fills, may be an object of little interest to the public; and to deprive him of that office may be of as little. But on what principles, he is either to be preserved or deprived, is an inquiry, in the highest degree important, 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 obviously adopted from an analogy to the English constitution. It was perceived, however, and could hardly fail to be perceived, that the re- n.blance was not strong, between the tribunals, clothed with the power of trying impeachments, in this country, and the English House of Lords. 'I his 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 unpeachments, as it tries other causes, and that the common rules of evidence, and the forms of proceedings, 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, it is obvious, that although the power of judging on impeachments could probably be nowhere so well deposited, as with the senate, yet it could not but be foreseen, that this high act of judicature was to be trusted to the hands of those who did not ordinarily perform judicial functions; but who occasionally only, and on such occasions, moreover, as were generally likely to be attended with some excitement, took upon themselves the duty of judges. It must, nevertheless, be confessed, that few evils have been, as yet, found to result from this arrangement. In all the states, in the aggregate, although there have been several impeachments, there have been fewer convictions, and fewer still, in which there is just reason to suppose injustice has taken place. From the experience of the past, I trust we 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 communitv a rigorous and unrelenting censorship over maladministration in office, and to individuals entire protection against prejudice, excitement, and injustice.

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The Respondent is impeached for various instances of alleged 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 inquire 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 duties. 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 notions, and general ideas, they adopted in practice, with such modifications as circumstances rendered necessary. In England, 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 magistrates, 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. (Ancient Charters, 204.)

At length, by the act of 1685, (An. Ch. 205) 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.

By the provincial charter of 1692, all power and jurisdiction, in the probate of wills and granting administration, was conferred on the governor and council. The governor then became supreme ordinary, and by the provision of the statutes they were to exercise the same power and authority as were exercised 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

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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 respect, between the Managers and ourselves, wide enough, in my judgment, to extend over the whole case. If the House of Representatives be right, in the legal doctrine which their Managers have advanced here, I agree at once 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 asserted. I will proceed to state the question, now at issue between 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, limited by statute.

It is certain, that judges of probate, in this state, are required to perform many acts, (such, for instance, as granting guardianship to persons non compotes mentis) for which no fees are specifically established by the statute. One of the learned Managers has expressly advanced the proposition, that for such services 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, establishes the fees 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 resonable may fairly be determined by reference to what the law allows him in the case of guardianship over minors.

. 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 ?uestion, in which neither prerogative nor discretion has aught to do. t 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

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