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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 community a rigorous and unrelenting censorship over maladministration in office, and to individuals entire protection against prejudice, excitement, and injustice.
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 caveat,”
establishment and regulation of fees, in this office. And as the governor and council possessed the general power of the courts in England, it is material to inquire into the authority and practice of those courts in this particular. There can be no doubt, that in the English courts, fees, in cases of probate and administration, were, from early times, in most cases regulated by custom, and the authority and direction of the courts themselves, without statute provisions. A table of fees, established in 1597, in the time of archbishop Whitgift, may be seen in Burn's Ecclesiastical Law, vol. 2. p. 266.
This table sets forth a long list of charges and fees of office accruing in the administration of estates, such as for “administration,” which probably means decreeing administration, “commission,” which is the letter of administration,“ interlocutory decree,” “examination of account,” “respite of inventory, “ citation,
quietus,” &c. &c. &c. At this time there was no statute which established the fees of office, in cases of administration, except one single provision in the St. 21, Hen. VIII, cap. 5, which enacted, that for granting administration on goods under forty pounds, the judge should receive no more than two shillings and sixpence. It appears from the preamble of that statute, that no previous law was existing, on the subject, and the grievance recited, is, that the bishops and their ordinaries demanded and received greater fees, for the probation of testaments, and other things thereunto belonging, than had been aforetime usual and accustomed. The preamble recites also, that an act of Henry V. had ordained, that no ordinary should take, for the probation of testaments, or other things to the same belonging, any more than was accustomed and used in the time of king Edward the third, which act did endure but to the next parliament, by reason that the said ordinaries did then promise to reform and amend their exactions : but inasmuch as the evil was still continued and aggravated, the act proceeded to limit and fix fees of office, for the probate of wills, and for other services respecting testate estates, and contains the single provision above mentioned, and no more, respecting administrations on intestate estates.
It is entirely clear and certain, that the fees of bishops and their ordinaries did not originate in the grant or provision of any act of parliament. Such acts were passed only to restrain and limit the amount, and to prevent exaction and extortion. The right to demand and receive fees rested on the general principle of a right to compensation for services rendered; and in the absence of statute limitations, the amount was ascertained by the practice and usage of the courts, being reasonable and proper. Hence it happened, in England, that different fees were paid, and probably still are, in the different dioceses, according to the usage of different courts, and the time when their tables of fees were respectively established. “In the several dioceses there are tables of fees, different, as it seemeth, in the several charges, in proportion to the difference of times wherein they have been established.” (2. Burn, 269.) This is precisely what has happened, and what, whether allowed to prove it or not, every member of this court knows, now actually exists, in relation to the different counties of this Commonwealth.
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 question, in which neither prerogative nor discretion has aught to do. It 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 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 annexed 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 Dici.—“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 meruit, 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 juris