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nite, and arguments are urged in support of them, so little resembling what we are accustomed to hear in the ordinary courts of criminal jurisdiction.
The offence, in this article, whatever it be, instead of being charged and stated in ordinary legal language, is thrown into the form of a narrative. A story, taken from the mouth of a heated, angry, and now contradicted witness, is written down at large, with every imaginable circumstance of aggravation, likely to strike undistinguishing minds; and this story, thus told, is the very form in which the article is brought. Here we have, in the article itself, a narrative of all the evidence; we have a dialogue between the parties, are favored so far as to be shown, by marks of quotation, what sentiments and sentences belong to the respective parties in that dialogue. All convenient epithets, and expletives are inserted in this dialogue. We find the "urgent and repeated" demand of the Respondent for fees. We perceive also that he is made to lead the conversation, on all occasions. He proposed to advise and instruct; he proposed to allow the sum in the account; and it was, again, on his proposition so to insert it, that it was paid. He is represented as wanting in manners, and decorum, as well as in official integrity. It is said he overheard a conversation; and that therefore he prepared to give his advice, before it was asked. In short, sir, this article contains whatever is most likely to cause the Respondent to be convicted, before he is heard. I do most solemnly protest against this mode of bringing forward criminal charges. I put it to the feeling of every honorable man, whether he does not instinctively revolt from such a proceeding?-In a government so much under the dominion of public opinion, and in a case in which public feeling is so easily excited, I appeal to every man of an honorable and independeut mind, whether it be not the height of injustice to send forth charges against a public officer, accompanied with all these circumstances of aggravation and exasperation? Here the evidence, as yet altogether ex parte, the story told by a willing, if not a prejudiced, witness, goes forth with the charge, embodied in the charge itself, without any distinction whatever between what is meant to be charged as an offence, and the evidence which is to support the charge. For my own part, sir, I can conceive of nothing more unjust. Would it be tolerated for one moment in a court of law, I beg to ask, that a prosecutor, departing from all the usual forms of accusation, should tell his own story, in his own way, mix up his evidence with his charges, and his own inferences with his evidence, so that the accusation, the evidence, and the argument, should all go together?-A judge would well deserve impeachment and conviction who should suffer such an indictment to proceed.
In this case, the whole matter might have been stated in five lines. It is simply this, and nothing more, viz; that the Respondent wishing, as an attorney, to obtain certain fees from a guardian, promised, if they were paid, to allow them in the guardianship account, as judge; and being paid he did so allow them. This is the whole substance and essence of the charge.
Notwithstanding our entire confidence in this Court, we cannot Fut know that the Respondent comes to his trial on this article un
der the greatest disadvantages. There is not a member of the Court, nor a reading man in the community, who has not read this charge, and thereby seen at once the accusation, and the evidence, which was to support it. The whole story is told, with all the minute circumstances, and no ground is left, for the reservation of opinion, or whereupon charity itself can withhold its condemnation. Far be it from me, sir, to impute this to design. I know not the cause; but so far as the Respondent is concerned, I know it had been just as fair and favorable to him, that the orginal ex parte affidavit, upon which the article was founded, should have been headed as No. 12, and inserted among the articles of impeachment. This, sir, is the true ground of the alarm which I feel, in regard to this charge; an alarm, I confess, not diminished by perceiving that this article is so great a favorite with the learned Managers; for when obliged to give up one and another of their accusations, they have asked us, with an air of confidence and exultation, whether we expect them to give up the twelfth article also.
I will now, sir, with your permission, proceed to consider whether this article states any legal offence. Stripped of everything but what is material, it appears to me to amount to no more than this; viz. 1. That the Respondent gave professional advice to a guardian, about the concerns of his ward, and received fees for it. 2. That he allowed those fees in the guardianship account. If this be the substance of the article, then the question follows the division which I have mentioned, and is, 1. Whether he had a right to give such advice, and to be paid for it; and, 2. Whether he had a right to allow the sum so paid in the guardian's account. I think these are the only questions to be considered. It cannot be material, certainly, whether Ware, the guardian, paid the fee willingly or unwillingly. The fact is true, that the Respondent received it. If he had no right to it, then he must take the consequence; if he had a right to it, then there was nothing wrong but Ware's want of promptitude in paying it. is it of any importance, supposing him to be right in allowing this fee in the guardian's account, whether he interlined the charge, in an account already drawn out, or had the account drawn over, that it might be inserted. Here again, we find a circumstance of no moment in itself, put forth to be prominent and striking, in this charge, and likely to produce an effect. It is said the sum was allowed by interlineation; as if the Respondent had committed one crime to hide another, and had been guilty of forgery, to cover up extortion. Sir, not only for the sake of the Respondent, but for the sake of all justice, and in behalf of all impartiality and candor, I cannot too often or too earnestly express my extreme regret, at the manner of this charge. On a paper not yet finished and recorded, what harm to make an alteration, if it be of a thing in itself proper to be done? Is it not done every day, in every court?-Not only affidavits, pro cesses, &c. but also minutes, decrees and judgments of the Court, before they are recorded, are constantly altered by interlineation, by the Court itself, or its order. The paper was in this case before the judge. It had not been recorded. If any new claim had then been produced, fit to be allowed, it was proper to allow it, and certainly not criminal to insert the allowance by interlineation.
If, sir, the substance of everything done by the Respondent in this case was lawful, then there never can justly be a criminal conviction, founded on the mere manner of doing it; even though the manner were believed to be as improper and indecorous as Ware would represent it. There is therefore no real inquiry, in this case, as I can perceive, but whether the Respondent had a right to give advice, and to be paid for it; and whether he had a right to allow it in the account.
And, in the first place, sir, had the Respondent a right to give professional advice to this guardian, respecting the estate of his ward?
It has frequently, perhaps as often as otherwise happened, that judges of probate have been practising lawyers. The statute book shows, that it has all along been supposed that this might be the case. There are acts, which declare that in particular, specified cases, such as appeals from their own judgments, they shall not act as counsel; implying of course that in other cases they are expected so to act, if they see fit. Until the law of 1818, there was nothing to prevent them from being counsel for executors, administrators and guardians, as well as any other clients. My colleague who first addressed the Court has fully explained the history and state of the law in this particular. There being then no positive prohibition, is there anything in the nature of the case, that prevents, or should prevent, in all cases, a judge of probate from rendering professional assistance to executors, administrators or guardians. I say in all cases, and supposing no fraudulent or collusive intention. The legislature has now passed a law on this subject, which is perhaps very well, as a general rule, and now, of course, binding in all cases. But before the passing of this law, it can hardly be contended, that in no case could a judge of probate give professional advice to persons of this character.-I admit, most undoubtedly, sir, that if a case of collusion, or fraud were proved, it would deserve impeachment. If the judge and the guardian conspired to cheat the ward, a criminal conviction would be the just reward for both. They might go into utter disgrace together, and nobody would inquire which was the unjust judge, and which the fraudulent guardian; "which was the justice, and which was the thief." But in a case of fair and honest character, where the guardian needed professional advice, and the judge was competent to give it, I see no legal objection. No doubt a man of caution and delicacy would generally be unwilling to render professional services, upon the value of which he might be afterwards called upon officially to form an opinion. He would not choose to be under the necessity of judging upon his own claim. Still there would seem to be no legal incompatibility. He must take care only to judge right. In various other cases, judges of probate are or may be called on to make allowances for moneys paid to themselves. It is so in all cases of official fees. It might be so, also, in the case of a private debt due from the estate of a ward to a judge of probate. If, in this very case, there had been a previous debt due from Ware's ward to the Respondent, might he not have asked Ware to pay it?-Nay, might he not have "demanded" it: might he not even have ventured to make an
repeated request," for it?-And if he had been so fortunate as to obtain it, might he not have allowed it in Ware's guardianship account? -And although he had been presumptuous enough to insert it by interlineation, among other articles in the account, before it was finally allowed and passed, instead of drawing off a new account, would even this have been regarded as flagrant injustice, or high enormity?—Now I maintain, sir, that the Respondent had in this case a right to give professional advice; and a right to be paid for it; and, until paid, his claim was a debt, due him from the ward's estate, which he might treat like any other debt. He might receive it, as a debt, and then as a debt paid allow it in the guardian's account.
As before observed, the first question is, whether he could rightfully give this advice. It was certainly a case in which it was proper for the guardian to take legal advice of somebody. The occasion called for it, and we find the estate to have been essentially benefited by it. It is among the clearest duties of those who act in situations of trust, to take legal advice, whenever it is necessary. If they do not, and loss ensues, they themselves, and not those whom they represent, must bear that loss. There can be no clearer ground, on which to make executors, administrators, and guardians personally liable for losses which happen to estates under their care, than negligence in not obtaining legal advice, when necessary and proper. If, instead of giving this fee to the Respondent, the guardian had given it to any other professional man, would anybody have thought it improper?-I presume no one would. Then, what was there, in the Respondent's situation, which rendered it improper for him to give the advice? It concerned no matter that could come before him-It was wholly independent of any proceeding arisen, or that could arise, in his court. It interfered in no way with his judicial duty, any more than it would have done to have given the same advice to the ward himself, before the guardianship. He had then as good right to give this advice to the guardian, as he would have had to have given it to the ward.
And, sir, in the second place, I think it plain, that if he had a right to give the advice, and to be paid for it, he had not only the right but was bound to allow it in the guardian's account. This article is attempted to be supported altogether by accumulating circumstances, no one of which bears resemblance to anything like a legal offence. Is the Respondent to be convicted for having given the advice? "No," it is said, "not that alone, but he demanded a fee for it." Is he to be convicted then, for giving advice, and for demanding a fee for it, it not being denied that it was a fit occasion for somebody's advice?" No, not convicted for that alone, but he insisted on a fee, and was urgent, and pressing for it." If he had a right to the fee, might he not insist upon it, and be urgent for it, till he got it, without a violation of law? "But then he promised to allow it in the guardian's account, and obtained it by means of this promise, and did afterwards allow it." But if it ought to be paid, and the guardian paid it, ought it not to be allowed in his account, and could it be improper for the Respondent to say he should so allow it, and actually so to allow it? "But did he not allow it by interlineation?" What sort of interlineation? The account was
before him, unrecorded; this came forward, as a new charge: and for convenience and to save labor, it was inserted among other charges, without a new draught; and this is all the interlineation there is in the case.
I now ask you, sir-I put it to every member of this Court, upon his oath and his conscience, to say on which of these circumstances the guilt attaches. Where is the crime? If this charge had been carried to the account without interlineation, would the Respondent have been guiltless? If not, then the interlineation does not constitute his guilt. If the fee had been paid to some one else, and then allowed, in the same manner it was allowed, would the Respondent have been guiltless? If so, then the crime is not in the manner of allowing the charge. If the guardian had urged and pressed for the Respondent's advice, and in receiving it had paid for it willingly and cheerfully, and it had been properly allowed in the account, would the Respondent then have been guiltless? If so, then his mere giving advice, and taking fees for it, of a guardian, does not constitute his crime. In this manner, sir, this article may be analyzed, and it will be found that no one part of it contains the criminal matter—and if there be crime in no one part, there can be no crime in the whole. It is not a case of right acts done with wrong motives, which sometimes may show misconduct, all taken together, although each circumstance may be of itself indifferent. Here is official corruption complained of. We ask, in what it consists. We demand to know the legal offence which has been committed. A narrative is rehearsed to us, and we are told that the result of that must be conviction; but on what legal grounds, or for what describable legal reason, I am yet at a loss to understand.
The article mentions another circumstance, which, whether true or false, must exceedingly prejudice the Respondent, and yet has no just bearing on the case. It is said the Respondent told Ware, that if he would pay this fee, the " overseers need know nothing about it." Now, sir, what had the overseers to do with this?-no more than the town crier. Those parts of the account which consisted of expenses incurred in their neighbourhood, were properly enough, though not necessarily, subjected to their examination. They had an interest in having the account right, and their approbation was a convenient voucher. But what had they to do, with the propriety of the guardian's taking legal advice, for the benefit of his ward? They could not judge of it, nor were they to approve or disapprove his charge for obtaining such advice. Why, then, I ask, sir, was this observation about the overseers introduced, not only as evidence, but into the body of the charge itself, as making a part of that charge? What part of any known legal offence does that observation, or others like it, constitute? Nevertheless, sir, this has had its effect, and in my opinion a most unjust effect.
I will now, sir, beg leave to make a few remarks on the evidence adduced in support of this article. Of those facts which I have thought alone material, there is no doubt, nor about them any dispute. It is true, that the Respondent gave the advice, and received the fee, and allowed it in the account. If this be guilt, he is guilty. As to everything else, in the articles-as to all those allegations