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legislature in this country is able, and may the time never come when it shall be able, to apply to itself the memorable expression of a Roman pontiff; “ Licet hoc DE JURE non possumus, volumus tamen DE PLENITUDINE POTESTATis."

The case before the court is not of ordinary importance, nor of every day occurrence. It affects not this college only, but every college, and all the literary institutions of the country. They have flourished, hitherto, and have become in a high degree respectable and useful to the community, They have all a common principle of existence, the inviolability of their charters. It will be a dangerous, a most dangerous experiment, to hold these institutions subject to the rise and fall of popular parties, and the fluctuations of political opinions. If the franchise may be at any time taken away, or impaired, the property also may be taken away, or its use perverted. Benefactors will have no certainty of effecting the object of their bounty; and learned men will be deterred from devoting themselves to the service of such institutions, from the precarious title of their offices. Colleges and halls will be deserted by all better spirits, and become a theatre for the contention of politics. Party and faction will be cherished in the places consecrated to piety and learning. These consequences are neither remote nor possible only. They are certain and immediate.

When the court in North Carolina declared the law of the state, which repealed a grant to its university, unconstitutional and void, the legislature had the candor and the wisdom to repeal the law. This example, so honorable to the state which exhibited it, is most fit to be followed on this occasion. And there is good reason to hope, that a state, which has hitherto been so much distinguished for temperate councils, cautious legislation, and regard to law, will not fail to adopt a course, which will accord with her highest and best interest, and in no small degree elevate her reputation.

It was for many and obvious reasons most anxiously desired, that the question of the power of the legislature over this charter should have been finally decided in the state court. An earnest hope was entertained that the judges of that court might have viewed the case in the light favorable to the rights of the trustees. That hope has failed. It is here, that those rights are now to be maintained, or they are prostrated forever. Omnia alia perfugia bonorum, subsidia, consilia, auxilia, jura ceciderunt. Quem enim alium appellem? quem obtester?

quem implorem? Nisi hoc loco, nisi apud vos, nisi per vos, judices, salutem nostram, quae spe erigua extremaque pendet, tenuerimus; nihil est præterea quo confugere possimus.

ARGUMENT

IN THE IMPEACHMENT OF JAMES PRESCOTT, BEFORE THE SENATE OF MASSACHUSETTS.-1821.

17

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 tail 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

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

impeachments,

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 samne magistrates, or some of them, on whom the other portions of judicial power were conferred. Wills were proved, and adıninistrations 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 ofhce; 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 lo 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. 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.

“In

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