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an equal field of mortal combat, and consent to contend with mortal weapons-cominus ense—it is probable they may sometimes get, as well as give, a wound. On the present question, we meet the learned Managers on equal terms, and fair ground, and we are willing that our client's fate should abide the result. The Managers have advanced a plain and intelligible proposition, as being the law of the land. , If they make it out, they show a good case against the Respondent; if they fail so to do, then their case, so far as it rests on this proposition, fails also. Let, then, the proposition be examined.
The proposition is, as before stated, that for services, which the law requires judges of probate to perform, but for which there is no particular fee established or provided by statute, they can receive no fee whatever.
In the first place, let it be remarked, that, of the various duties and services, required of judges of probate, some grow out of the very nature of their office, and are incidental to it, or arise by common law; others were imposed by statutes passed before the establishment of any fee bill whatever, and others, again, by statutes passed since. The statute, commonly called the fee bill, was passed for the regulation of fees in other courts, and other offices, as well as of the judges and registers of probate. It imposes no duty whatever on any officer. It treats only of existing duties, and of those no farther than to limit fees. It declares, that, “ The fees of the several persons hereafter mentioned, for the services respectively annered to their names, shall be as follows,” &c. The statute then proceeds to enumerate, among other things, certain services of the judges of probate; but it is acknowledged that it does not enumerate or set forth all the services, which the law calls on him to perform.
In our opinion, sir, this is simply a restraining statute. It fixes the amount of fees, in the cases mentioned, leaving everything else as it stood before. I have already stated, that, in England, fees, in the ecclesiastical courts, for probate of wills, and granting administrations, were of earlier date than any statute respecting them, and their amount ascertained, by usage, and the authority of the courts themselves. “The rule is,” says Dr. Burn, “the known and established custom of every place, being reasonable.” (4. Burn's Eccles. Law, 267.)
And if the reasonableness of the fee be disputed, it may be tried by jury, whether the fee be reasonable. (1. Salkeld, 333.) If this be so, then clearly there exists a right to some fee, independent of a particular statute; for if there be no right to any fee at all, why refer to a jury to decide what fee would be reasonable? But the law is still more express on this point.-“ Fees are certain perquisites allowed to officers in the administration of justice, as a recompense for their labor and trouble; ascertained, either by acts of parliament, or by ancient usage, which gives them an equal sanction with an act of parliament." All such fees as have been allowed by courts of justice to their officers, as a recompense for their labor and attendance, are established fees; and the parties cannot be deprived of them without an act of parliament.” (Coke, Lit. 368. Prec. Chan. 551. Jacob's Law Dict.-“ Fees.”)
I may add, that fees are recoverable, in an action of assumpsit, as for work and labor performed. The doctrine contended for on the other side is contradicted, in so many words, by a well settled rule; viz, that if an office be erected for the public good, though no fee is annexed to it, it is a good office; and the party, for the labor and pains which he takes in executing it, may maintain a quantum meruil, if not as a fee yet as a compensation, for his trouble. (Moore, 808. Jac. “ FEES." (A. E.) Hard. 355. Salk. 333.)
The universal practice, sir, has corresponded with these rules of law. Almost every officer in the Commonwealth, whose compensation consists in fees of office, renders services not enumerated in the fee bill, and is paid for those services; and this, through no indulgence, or abuse, but with great propriety and justice. Allow me to mention one instance, which may be taken as a sample for many. Some thousands of dollars are paid, every year, to the clerks of the several Courts of Common Pleas, in this State, for certified copies of papers and records remaining in their offices. The fee bill neither authorises the taking of any such fee, nor limits its amount, nor mentions it, in any way. There are other instances, equally clear and strong, and they show us that all the courts of justice, and all the officers concerned in its administration, have understood the law, as the Respondent has understood it; and that the notion of the learned Managers derives as little support from practice, as it does from reason or authority. The learned Managers have produced no one opinion of any writer, no decision of any court, and, as I think, no shadow of reason, to sustain themselves in the extraordinary ground which they have taken; ground, I admit, essential to be maintained by them, but which the Respondent could devoutly wish they had taken somewhat more of pains to examine and explore before, on the strength of it, they had brought him to this bar. I submit it, sir, to the judgment of this court, and to the judgment of every judge and every lawyer in the land, whether the law be not, that officers, paid by fées, have a right to such fees, for services rendered, on the general principle of compensation for work and labor performed; the amount to be ascertained by the statute, in cases in which the statute has made a regulation; and, in other cases, by analogy to the services, which are especially provided for, and by a consideration of what is just and reasonable in the case. With all my respect, sir, for the learned Managers, it would be mere affectation, if I were to express myself with any diffidence on this part of the case, or should leave the topic with the avowal of any other feeling than surprise, that a judge of the land should be impeached and prosecuted upon the foundation of such opinions as have in this particular been advanced.
Before I proceed further, sir, I wish to take notice of a point, perhaps not entirely essential to the case. The Respondent, in his answer, has stated, that the jurisdiction of judges of probate consists of two parts, commonly called the amicable or voluntary and the contentious jurisdiction. One of the learned Managers has said, that this distinction can by no means be allowed, and has proceeded to state, if I rightly understood him, that the voluntary jurisdiction of the English ecclesiastical courts has not, in any part of it, devolved on, and been granted to, the judges of probate here. As it is not perhaps material for the present discussion, to ascertain precisely what is the true distinction between the voluntary and the contentious jurisdiction of the ecclesiastical courts, as understood in England, I shall content myself with reading a single authority on the subject. Dr. Burn (vol. 1, p. 292) says;—“Voluntary jurisdiction is exercised in matters which require no judicial proceeding, as in granting probate of wills, letters of administration, sequestration of vacant benefices, institution, and such like; contentious jurisdiction is, where there is an action or judicial process, and consisteth in the hearing and determining of causes between party and party.”
It can be now at once seen, sir, whether any part of the jurisdiction exercised by judges of probate in this State, be voluntary, 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 consideration of the charges contained in these articles.
And the first inquiry is, whether any misconduct or maladministration in office, is sufficiently charged, upon the Respondent, 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 determined. 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 decision 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 Manager 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 be to be tried, and can only be tried for some offence known to the constitution and the law; and if evidence against him can be produced only according to the ordinary rules, then, indeed, counsel may possibly be of service to him. But if other considerations, 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 riolation 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 necessary to be regarded in impeachments. The constitution has given this body the power of trying impeachments, without defining what an impeachment is, and therefore necessarily introducing, with the term itself, its usual and received definition, and the character and incidents which belong to it. An impeachment, 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. (2. Wooddeson, 611. 4. Bl. Comm. 259. 1.A P. C. 150. 1. Chitty's Criminal Law, 169.) 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 evidence, any more latitude, than on trials for murder, or any other crime, in the courts of law. Rules of evidence are rules of law, and their observance on this (ccasion 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 evidence, 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 everything else by the same rule.
This being, then, a judicial proceeding, the first requisite is, that the Respondent's offence, should be fully and plainly, substantially and formally described to him. This is the express requisition of the constitution. Whatever is necessary to be proved, must be alleged; and it must be alleged with ordinary and reasonable certainty. I have already said, that there may be necessary 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 indictments, which, nevertheless, it is not necessary to prove precisely as stated. An indictment must set forth, among other things, for instance, 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 day. It has been holden, in the case of an impeachment, that it is sufficient to state the commission 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 4th 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 September, 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, 11th, 12h, or 13th, of November last.”
A question was put to the judges, “ whether in indictments for treason or selony 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 sufficient. 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 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 positive 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 statesman,“ 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 anything but a known law." These two great points our constitutions have endeavoured to establish; and the constitution of this Commonwealth in particular, 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 Managers now rely? Vol 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 anybody 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;
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?
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.