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.

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