All the objections which have been made to the first article, apply equally to the second; with this further observation, that for the services mentioned in this article the fee bill makes no provision at all. The same objections apply also to the third, fourth, and fifth articles. It seems to us, sir, that all these charges for receiving illegal fees, without setting out, in particular, what service was done, and what was the amount of excess, are insufficient to be the foundation of a judgment against the Respondent. And especially all the articles, in which he is charged with receiving fees for services not specified in the fee bill; it being not stated, what he would be properly entitled to in such cases, by usage, and the practice of the courts, and there being no allegation that the sum received was an unreasonable compensation for the services performed. In this respect the articles consider that to be settled by positive law, which is not so settled. The second article, for example, alleges that the Respondent demanded and received, for certain letters of guardianship granted by him over persons non compotes mentis "other and greater fees than are by law allowed therefor."-This supposes, then, that some fees are allowed by law therefor; yet, this is the very case in which it has been contended by the Managers that no fee whatever was due; there being none mentioned in the fee bill. Between the words of the article, and the tenor of the argument, there appears to me to be no small hostility. Both cannot be right. They cannot stand together. There should be either a new argument to support the article, or a new article to meet the argument.

Having made these observations on the legal sufficiency of all the articles which charge the Respondent with holding unlawful courts, and demanding and receiving unlawful fees, before proceeding to those which advance charges of a different nature against him, allow me to advert to the evidence which has been given, on these five first articles respectively; and to consider what unlawful act has been proved against the Respondent in relation to the matters contained in them.

In the first place, it is proved, that the Respondent held a special Probate Court at Groton, October 14, 1816; and at such court granted letters of administration to one Tarbell. This court the register did not attend. With respect to parties concerned in the business then and there to be transacted, they all had notice, as far as appears; and no one has ever been heard to complain on that account.

It has now been contended, sir, by the learned Managers, that this court was holden unlawfully, because not holden at a time previously fixed by law. They maintain that judges of probate can exercise no jurisdiction, except at certain terms, when their court is to be holden.

On the contrary the Respondent has supposed, and has acted on the supposition, that he might lawfully hold his court, for the transaction of ordinary business, at such time and place as he might think proper; giving due and proper notice to all parties concerned. He supposes he might so have done, independently of the provisions of any statute; and he supposes, moreover, that he was authorised so to do, by the express provision of the statute of 1806.

The first inquiry, then, is, whether the probate courts, in this Commonwealth, be not courts which may be considered as always

open; and authorised, at all times, to receive applications, and transact business; upon due notice to all parties; or whether on the contrary their jurisdiction can only be exercised, in term, or at such stated periods and times as may be fixed by law. It is true, that the common law courts have usually fixed terms, and can exercise their powers only during the continuance of these terms. In England, the termination as well as the beginning of the term is fixed by law. With us, the first day only is fixed, and the courts, having commenced on the day fixed by law, hold on as long as the convenience of the occasion requires.

After the

In early ages the whole year was one continued term. introduction of Christianity among the western nations of Europe, the governments ordained that their courts should be always open, for the administration of justice; for the purpose, among other things, of showing their disapprobation of the heathen governments, by whom the dies fasti et nefasti were carefully, and as they thought, superstitiously regarded. In the course of time, however, the church interfered; and prevailed to rescue certain seasons of the year, which it deemed holy time, such as Christmas and Easter, &c. from the agitations of forensic discussion. The necessities of rural labor afterwards added the harvest months to the number of the vacations. The vacations were thus carried out of the year, and what was left was term. Thus, even with regard to the common law courts, the provisions respecting terms were made, not so much for creating terms as creating vacations. And for this reason it probably is, that as well the termination as the commencement of the term should be established by law.

In respect to the spiritual courts, no such positive regulations, as far as I can learn, appear to have been made. Their jurisdiction is one which seems necessarily to require more or less of occasional as well as stated exercise. The bishop's jurisdiction, over wills and administrations, was not local, but personal. Hence he might exercise it, not only when he pleased, but where he pleased; within the limits of his diocese, or without. He might grant letters of administration, for instance, while without the local limits over which his jurisdiction extends, because it is a personal authority which the law appoints him to exercise. "The power of granting probates is not local, but is annexed to the person of the archbishop, or bishop; and therefore a bishop, or the commissary of a bishop, while absent from his diocese, may grant probate of wills, respecting property within the same; or if an archbishop, or bishop, of a province or see in Ireland happens to be in England, he may grant probate of wills relative to effects within his province or diocese." (Toller, 66. 4. Burn. 285.)

Notwithstanding this, however, the canons ordain, that the ordinaries shall appoint proper places and times, for the keeping of their courts; such as shall be convenient for those who are to make their appearance there; this is for the benefit of suitors. The object is that there may be some certain times, and places, when and where persons having business to be transacted may expect to find the judge; and it by no means necessarily takes away the power of transacting business at other times and places. The ordaining of such a

rule plainly shows, that before it was made, these judges held their courts when and where they pleased, and only when and where they pleased.

If we recur again to the history of this Commonwealth, we shall find, that what necessity or convenience had established in England, the same necessity or convenience soon established here.

By the colony charter, no provision was made for a court for the probate of wills and granting administrations. In 1639 it was ordained, that there should be records kept, of all wills, administrations, and inventories. (An. Ch. 43.)—In 1649 an act was passed requiring wills to be proved at the county court, which should next be after thirty days from the death of the party; and that administration should be there taken, &c. (Ibid 204.)

These county courts were courts of common law jurisdiction, and were holden at stated terms. But experience seems soon to have shown, that from the nature of probate jurisdiction, its exercise could not be conveniently confined to stated terms; for in 1652, an act was passed, authorising two magistrates, with the recorder of the county court, to allow and approve of wills, and grant administrations; the clerk to cause the will or administration to be recorded. (Ibid. 204.) The reason of passing this act is obvious. The county court consisted of many magistrates. They assembled to form a court, only at stated terms. On this court the law had conferred the powers of probate of wills and granting administrations; and like other business it could of course only be transacted at stated terms. This was found to be an inconvenience, and the law which I have cited was passed to remedy it. So that instead of confining the exercise of the jurisdiction of these courts to stated terms, we find the law has done exactly the contrary. Not only the analogy which they bear with other courts of similar jurisdiction, but our own history, and the early enactments of the colonial legislature all conspire to refute the notions which have been advanced-I cannot but think somewhat incautiously advanced-on this occasion.

The provisions of the constitution, requiring judges of probate to hold their courts on certain fixed days, is perfectly and strictly consistent nevertheless, with the occasional exercise of their powers at other times. The law has had two objects, in this respect; distinct, indeed, but consistent. One is that there should be certain fixed days, when it should be the duty of the judges to attend to the business of their offices, and the applications of suitors; the other, that they might, when occasion required, perform such duties, and attend to such applications on other days. The learned Managers seem to have regarded these provisions of law as repugnant, whereas they appear to us to consist perfectly well together.

If it were possible, sir, that we were still mistaken in all this, there is yet the provision of the special law of 1806, which would seem to put an end to this part of the case. This statute has been already stated; its terms are express, and its object plain beyond all doubt or ambiguity. Not only does this act, of itself, afford the most complete justification to the Respondent in this case, but it proves also, either that the Legislature or the learned Managers have misunderstood the requisition of the constitution in regard to

fixed days for holding probate courts. My colleagues have put this part of the argument beyond the power of any answer. I leave it where they left it.

With respect to notice to parties, I have already said that it is not at all proved, or pretended to be proved, that there was any person entitled to notice, who did not receive it. It would be absurd and preposterous now to call on the Respondent to give positive proof of notice to all persons concerned. As it was his duty to give such notice, it is to be presumed he did give it, until the contrary appear. Besides, as no omission to give notice is stated in the article, as a fact rendering the court illegal, how is he expected to come here prepared to prove notice?

I have little to add, sir, to what my learned colleague who immediately preceded me has said respecting the necessity of the register's attending these special courts.-One of the learned Managers, if I mistake not, (Mr. Shaw) has said, that the statute of 1806, which requires notice to parties, requires notice also to the register.. I see no sort of reason for such a construction of the act. The words are, that the judge may appoint such times and places for holding his court as he shall deem expedient, giving public notice thereof, or notifying all concerned, and has no relation to the officers of the court. Neither the register, nor the crier, nor the door keeper, is, I should imagine, within this province; and yet I suppose one

to be as much within it as the other.

The presence of the register cannot be essential to the existence of the court, any more than the presence of the clerk is essential to the existence of any other court. Like other courts, the court of probate has its clerk, called a register, but he is no more part of the court, than the clerk of the Supreme Judicial Court is a component part of that court.

No provision appears to have been made by the Province laws for the appointment of a register. The ordinary having the whole power over the subject of the probate of wills and granting administrations, might allow a clerk or register to his surrogate, or not, at his pleasure. It was necessary of course that records should be kept, but this might be done by the judge himself, as some other magistrates keep their own records. There are certain statutes which speak of the register's office, but which seem only to mean the place where the records are kept. They contain no provision for the appointment of such an officer, nor any description of his duties. (4. W. and M. ch. 2.) It appears, as I am informed, by the Suffolk probate records, that a register was appointed by the governor, by virtue of his power as Supreme Ordinary, immediately after the issuing of the Provincial charter. The first provision made by law for this officer, if I mistake not, is contained in the statute of 1784; (vol. 1. page 155) and the duties of the officer are well described in that act. He is to be the register of wills and letters of administration, and to be keeper of the records. His signature or assent is necessary to the validity of no act whatever. He is to record official papers, and to keep the records and documents which belong to the office.

It is quite manifest, from the laws made under the charter, as well as those enacted since the adoption of the present government, that the presence of the register has not been essential to the existence of a legal probate court-the proof of this is, that certain acts or things, by these statutes, may be done by the judge without the register. By 6 of Geo. 1. ch. 3. it is provided, that persons to take an inventory of one deceased, shall be appointed and sworn by the Judge of probate, if the estate be in the town where he dwells, or within ten miles thereof; otherwise by a justice of the peace. (P. L. 222.) By 4. Geo. 2. ch. 3. appraisers are to be sworn by the judge, if the estate be within ten miles of his dwelling house. (Ib. 286.)

By the act of March 1784, when a minor lives more than ten miles from the Judge's dwelling house, his choice may be certified to the judge by a justice of the peace.

These several laws plainly contemplate the performance of certain acts by the judge, not at probate courts holden at stated times, and without the presence or assistance of the register.

And now, sir, I have finally to remark, on the subject of holding these special courts, the Respondent is proved to have followed the practice which he found established in the office when he was appointed to it. The existence of this practice is proved, beyond all doubt or controversy, by the evidence of Dr. Prescott.

As to the holding of special courts, therefore, the defendant rests his justification, on what he conceives to be the general principle of law, on the express provision of the statute, and the usage, which has been proved to exist before and at the time when he came into the office.

The charge, Mr. President, in the first article, for taking illegal fees, has been fully considered by other counsel. I need not detain the Court by further comment. It is true, that for what is called a set of administration papers, the Respondent received in this case five dollars fifty-eight cents. It is true also, that for the same business, done at a stated court, the fees would have been but three dollars and sixty cents. The reason for this difference is fully stated in the defendant's answer. But it is also true, that the usual sum at stated courts, viz. three dollars and sixty cents, is made up by the insertion of fees for sundry services not specified in the fee bill. Indeed, the learned Managers have not, as has been so often before observed, even yet told us what would have been the precise amount of legal fees in this case. They appear to be marvellously shy of figures. If the Court adopt the opinion of the learned Managers, that no fees are due, where none are specially provided, and that for receiving fees in such cases an officer is impeachable, then there is no doubt that the Respondent may be impeached and convicted, for his conduct in regard to every administration which he has granted for fifteen years; and there is as little doubt that, on that ground any judge of probate in the Commonwealth is impeachable; as must be well known to every member of this Court, whether they suffer it to be proved here or not.

It is utterly impossible to know, by this article itself, in what it was intended to charge the Respondent with having received illegal