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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.

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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 "There are done very little indeed for the security of civil liberty. two points," said a distinguished statesman, 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? Not 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 We hear them now contending, that these courts to anybody else. were illegal for the following reasons, which they say are true, as facts, viz:

1. That the register was absent;

No one fact or

2. That the register had no notice to be present; 3. That parties had not notice to be present. Now, not one of these is stated in the article. 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.

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The next charge in this article is for receiving illegal fees for services performed. I contend that this also is substantially defective, in not setting out what sum in certain, the defendant has received as illegal fees. It is material to his defence that he should be informed, more particularly than he here is, of the charge against him. If it be merely stated that for divers services respecting one administration, he received a certain sum, and for divers others, respecting another, another certain sum, and that these sums were too large, (which is the form of accusation adopted in this case,) he cannot know for what service, or on what particular item, he is charged with having received illegal fees. The legal and the illegal are mixed up together, and he is only told that in the aggregate he has received too much. In some of these cases, there is a number of items, or particulars, in which fees are charged and received; but in the articles these items or particulars are not stated, and he is left to conjecture, out of ten, or it may be twenty, particular cases, which one it is, that the proof is expected to apply to.

My colleague has referred to the cases, in which it has been adjudged, that in prosecutions against officers for the alleged taking of illegal fees, this general manner of statement is insufficient. It is somewhat remarkable, that ancient acts of Parliament should have been passed expressly for the purpose of protecting officers, exercising jurisdiction over wills and administration, against prosecutions in this form; which were justly deemed oppressive. The st. 25, Ed. 3, cap. 9, after reciting, "that the king's justices do take indictments of ordinaries, and of their officers, of extortion, or oppressions, and impeach them, without putting in certain, wherein, or whereof, or in what manner they have done extortion;"-proceeds to enact, "That his justices shall not from henceforth impeach the ordinaries, nor their officers, because of such indictments of general extortions or oppressions, unless they say, and put in certain, in what thing, and of what, and in what manner the said ordinaries or their officers have done extortions or oppressions."

The charge in this case, ought to have stated the offensive act, for which the fee was taken; and the amount of the fee received. The Court could then see whether it were illegal. Whereas the article, after reciting certain services performed by the Respondent, some of which are mentioned in the fee bill, and others are not, alleges that for the business aforesaid the Respondent demanded and received other and greater fees than are by law allowed. Does this mean, that he received excessive fees for every service, or was the whole excess charged on one service? Was the excess taken on those particular services, for which a specific fee is given by the statute, or was it taken for those services not mentioned in the fee bill at all? But further; the article proceeds to state, that afterwards during and upon the settlement of said estate, the Respondent did demand and receive divers sums, as fees of office, other and greater than are by law allowed; without stating at all what services were rendered, for which these fees were taken! It is simply a general allegation, that the Respondent received from an administrator, in the settlement of an estate, excessive fees; without stating, in any manner whatever, what the excess was, or even what services were

performed. I beg leave to ask, sir, of the learned Managers, whether they will, as lawyers, express an opinion before this Court, that this mode of accusation is sufficient? Do they find any precedent for it, or any principle to warrant it? If they mean to say, that proceedings, in cases of impeachment, are not subject to rule; that the general principles applicable to other criminal proceedings do not apply; this is an intelligible, though it may be an alarming course of argument. If, on the other hand, they admit, that a prosecution by impeachment is to be governed by the general rules applicable to other criminal prosecutions; that the constitution is to control it; and that it is a judicial proceeding; and, if they recur, as they have already frequently done, to the law relative to indictments, for doctrines and maxims applicable to this proceeding; I again ask them, and I hope in their reply they will not evade an answer, will they, as lawyers, before a tribunal constituted as this, say, that in their opinion, this mode of charging the Respondent is constitutional and legal? Standing in the situation they do, and before such a Court, will they say, that, in their opinion, the Respondent is not, constitutionally and legally, entitled to require a more particular statement of his supposed offences? I think, sir, that candor and justice to the Respondent require, that the learned Managers should express, on this occasion, such opinions on matters of law, as they would be willing, as lawyers, here and elsewhere to avow and defend. I must therefore, even yet again, entreat them to say, in the course of their reply, whether they maintain that this mode of allegation would be sufficient in an indictment; and if not, whether they maintain, that in an impeachment, it is less necessary that the defendant be informed of the facts intended to be proved against him, than it is in an indictment. The learned Managers may possibly answer me, that it is their business only to argue these questions, and the business of the Court to decide them. I cannot think, however, that they will be satisfied with such a reply. Under the circumstances in which he is placed, the Respondent thinks that the very respectable gentlemen who prosecute him, in behalf of the House of Representatives, owe a sort of duty, even to him. It is far from his wish, however, to interfere with their own sense of their own duty. They must judge for themselves, on what grounds they ask his conviction from this Court. Yet he has a right to ask—and he does most earnestly ask, and would repeatedly and again and again, ask, that they will state those grounds plainly and distinctly. For he trusts, that if there be a responsibility, even beyond the immediate occasion, for opinions and sentiments here advanced, they must be entirely willing, as professional men, to meet that responsibility.

I now submit to this Court, whether the supposed offences of taking illegal fees, as charged in this article, are set forth legally and sufficiently; either by the common rules of proceedings in criminal cases, or according to the constitution of the State.

As to the manner of stating the offence in this article—I mean the allegation that the Respondent refused to give, on request, an account of items of fees received, it appears to me to be substantially right, and I have no remarks to make upon it. The question upon that will be, whether the fact is proved.

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 and maladministration in office; and having been referred to a committee, who reported a statement of facts, together with resolutions, setting forth that the said Prescott ought to be impeached therefor, at the bar of the Senate of the Commonwealth-on the 2d day of February, 1821, an order was passed accordingly, and the Senate demanded to take measures for his impeachment and appearance to answer thereto. A committee was thereupon appointed to prepare and report articles of impeachment. And John Glen King, Levi Lincoln, William Baylies, Warren Dutton, Samuel P. P. Fay, Lemuel Shaw and Sherman Leland, Esquires, were appointed Managers. Fifteen Articles of Impeachment were exhibited 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 the 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. PRESIDENT,-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 differ 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, in 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 carry 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 of undefined and undefinable offences, to loose notions of constitutional law, or novel rules of evidence. By the necessary retribution of things, the evil of such a course would fall most heavily on the State 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 principles 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 resemblance was not strong, between the tribunals, clothed with the power of trying impeachments, in this country, and the English House of Lords. This 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 impeachments, 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

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