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which go to degrade the Respondent, and in some measure affect his reputation, as a man of honor and delicacy-they rest on Ware, and on Ware alone. Now, sir, I only ask for the Respondent the common advantages allowed to persons on trial for alleged offences. I only entreat for him from this Court the observance of those rules which prevail on all other occasions, in respect to the construction to be given to evidence, and the allowances which particular considerations render proper.
It is proved, that this witness has had a recent misunderstanding with the Respondent, and that he comes forward, only since that misunderstanding, to bring this matter into public notice.-Threats of vengeance, for another supposed injury, he has been proved to have uttered more than once.-This consideration alone, should lead the Court to receive his evidence with great caution, when he is not swearing to a substantial fact, in which he might be contradicted, but to the manner of a transaction. Here is peculiar room for misrepresentation, and coloring, either from mistake or design. What a public officer does, can be proved; but the mere manner, in which he does it, every word he may say, every gesture he may make, cannot ordinarily be proved; and when a witness comes forth who pretends to remember them, whether he speaks truth or falsehood, it is most difficult to contradict him. It is in such a case therefore that a prejudiced witness should be received with the utmost caution and distrust.
There is, sir, another circumstance of great weight. This is a very stale complaint. It is now nearly six years, since this transaction took place. Why has it not been complained of before?—There is no new discovery. All that is known now, was known then. If Ware thought of it then, as he thinks of it now, why did he not complain then? What has caused his honest indignation so long to slumber, and what should cause it to be roused only by a quarrel with the Respondent?
Let me ask, sir, what a grand jury would say to a prosecutor, who, with the full knowledge of all the facts, should have slept over a supposed injury for six years, and should then come forward to prefer an indictment? What would they say especially if they found him apparently stimulated by recent resentment, and prosecuting, for one supposed ancient injury, with the heat and passion excited by another supposed recent injury? Sir, they would justly look on his evidence with suspicion, and would undoubtedly throw out his bill. Justice would demand it; and in my humble opinion justice demands nothing less on the present occasion.
But, sir, there is one rule of a more positive nature, which I think applicable to the case; and that is, that a witness detected in one misrepresentation is to be credited in nothing. This rule is obviously founded in the plainest reason, and it would be totally unsafe to disregard it. Now if there be any one part of Ware's testimony, more essential than all the rest, as to its effect in giving a bad appearance to the Respondent's conduct, it is that in which he testifies that the Respondent volunteered, in the case, and offered his advice before it was asked. This is a most material part of the whole story; it is indispensable to the keeping of the picture which the learned
Managers have drawn.-And yet, sir, in this particular, Ware is distinctly and positively contradicted by Grout. Now, sir, if we were in a court of law, a jury would be instructed, that if they believed Ware had wilfully deviated from the truth, in this respect, nothing which rested solely on his credit would be received as proved. We ask for the Respondent, in this, as in other cases, only the common protection of the law. We require only that those rules, which have governed other trials, may govern his; and according to these rules, I submit to the Court that it cannot and ought not to convict the Respondent, even if the facts sworn to would, if proved, warrant a conviction, upon the sole testimony of this witness. Even if we were sure that there were no other direct departure from the truth, yet in the whole of his narrative, and the whole of his manner, we see I think indications of great animosity and prejudice. If the whole of this transaction were to be recited by a friendly, or a candid witness, I do not believe it would strike any body as extraordinary. Any mode of telling this story which shall confine the narrative to the essential facts, will leave it, in my humble opinion, if not a strictly proper, yet by no means an illegal or impeachable transaction. Let it be remembered that a great part of his story is such, as cannot be contradicted, though it be false, in as much as it relates to alleged conversations between him and the Respondent when nobody else was present. Wherever the means naturally exist of contradicting or qualifying his testimony, there it is accomplished. Whatever circumstance can be found bearing on it, shows that is in a greater or less degree incorrect. For example, Ware would represent that it was an important part of this arrangement to keep the payment of the fee from the knowledge of the overseers. This was the reason why the charge was to be inserted in the existing account, by interlineation. Yet the evidence is, that a complete copy of this very interlined account was carried home by Ware, where the overseers could see it, and would of course perceive exactly what had been done. This is utterly inconsistent with any purpose of secrecy or concealment.
Making just and reasonable allowances, for the considerations which I have mentioned, I ask, is any case proved, by the rules of law, against the Respondent? And further, sir, taking the facts only which are satisfactorily established, and supposing the Respondent's conduct to have been wrong, is it clearly shown to have been intentionally wrong? If he ought not to have given the advice, is it anything more than an error of judgment? Can this Court have so little charity for human nature, as to believe that a man of respectable standing could act corruptly for so paltry an object? Even although they should judge his conduct improper, do they believe it to have originated in corrupt motives? For my own part, sir, notwithstanding all that prejudices and prepossessions may have done, and all that the most extraordinary manner of presenting this charge may have done, I will not believe, till the annunciation of its judgment shall compel me, that this Court will ever convict the Respondent upon this article.
I now beg leave to call the attention of the Court to one or two considerations of a general nature, and which appear to me to have
an important bearing on the merits of this whole cause.-The first is this, that from the day when the Respondent was appointed Judge of Probate, down to the period at which these articles of impeachment close-from the year 1805 to 1821-there is not a single case, with the exception of that alleged by Ware, in which it is even pretended that any secrecy was designed or attempted by the Respondent: there is not a single case, in which he is even accused of having wished to keep anything out of sight, or to conceal any fact in his administration, any charge which he had made, or any fee which he had taken. The evidence, on which you are to judge him, is evidence furnished by himself; and instead of being obliged to seek for testimony in sources beyond the Respondent's control, it is his own avowed actions, his public administration, and the records of his office, which the Managers of the prosecution alone have been able to produce. And yet he is charged with having acted wilfully and corruptly; as if it were possible that a magistrate, in a high and responsible station, with the eyes of the community upon him, should, for near twenty years, pursue a course of corrupt and wilful maladministration, of which every act and every instance was formally and publicly put on record by himself, and laid open in the face of the community. Is this agreeable to the laws of human nature? Why, sir, if the Respondent has so long been pursuing a course of conscious, and wilful, and corrupt maladministration, why do we discover none of the usual and natural traces of such a course-some attempt at concealment, some effort at secrecy; and in all the numberless cases, in which he had opportunity and temptation, why is not even a suspicion thrown out, that he has attempted to draw a veil of privacy over his alleged extortions? Is it in reason that you should be obliged to go to his own records for the proof of his pretended crimes? And can you, with even the color of probability, appeal to a course of actions unsuspiciously performed in the face of Heaven, to support an accusation of offences in their very nature private, concealed, and hidden?
Another consideration of a general nature to which I earnestly ask the attention of this Hon. Court, is this, that after all these accusations, which have been brought together against the Respondent, in all these articles of impeachment, and with all the industry and zeal, with which the matter of them has been furnished to the Hon. Managers, he is not accused nor was suspected of the crime, most likely to bring an unjust judge to the bar of this Court. Show me the unjust judgment he has rendered, the illegal order he has given, the corrupt decree he has uttered, the act of oppression he has committed. What, sir, a magistrate, charged with a long and deliberate perseverance in wilful and corrupt administration, accused of extortion, thought capable of accepting the miserable bribe of a few cents or a few dollars, for illegal and unconstitutional acts-and that, too, in an office, presenting every day the most abundant opportunities, and if the Respondent were of the character pretended, the most irresistible temptation to acts of lucrative injustice; and yet, not one instance of a corrupt, illegal, or oppressive judgment! I do ask the permission of this Hon. Court and of every member of it, to put this
to his own conscience. I will ask him, if he can now name a more able and upright magistrate, as shown in all his proceedings and judgments, in all the offices of probate in the State? One whose records are more regularly and properly kept, whose administration is more prompt, correct, and legal,-whose competency to the duties is more complete, whose discharge of them is more punctual? I put this earnestly, sir, to the conscience of every member of this Hon. Court. I appeal more especially to my honorable friend, (Mr. Fay) entrusted with a share of the management of this prosecution, and who has been for twenty years an inhabitant of the county of Middlesex. I will appeal to him, sir, and I will ask him, whether if he knew, that this night his wife should be left husbandless and his children fatherless, there is a magistrate in the State, in whose protection he had rather they should be left, than in that of the Respondent? Forgetting, for a moment, that he is a prosecutor, and remembering only that he is a citizen of the same county, a member of the same profession, with an acquaintance of twenty years standing, I ask him if he will say that he believes there is a county in the State, in which the office of Judge of Probate has been better administered for twenty years, than it has been in the county of Middlesex by this Respondent. And yet, sir, you are asked to disgrace him. You are asked to fix on him the stigma of a corrupt and unjust judge, and condemn him to wear it through life.
Mr. President, the case is closed! The fate of the Respondent is in your hands. It is for you now to say, whether, from the law and the facts as they have appeared before you, you will proceed to disgrace and disfranchise him. If your duty calls on you to convict him, convict him, and let justice be done! but I adjure you let it be a clear undoubted case. Let it be so for his sake, for you are robbing him of that, for which with all your high powers, you can yield him no compensation; let it be so for your own sakes, for the responsibility of this day's judgment is one, which you must carry with you through your life. For myself, I am willing here to relinquish the character of an advocate, and to express opinions by which I am willing to be bound, as a citizen of the community. And I say upon my honor and conscience, that I see not how, with the law and constitution for your guides, you can pronounce the Respondent guilty. I declare, that I have seen no case of wilful and corrupt official misconduct, set forth according to the requisition of the constitution, and proved according to the common rules of evidence. I see many things imprudent and ill judged; many things that I could wish had been otherwise; but corruption and crime I do not see. Sir, the prejudices of the day will soon be forgotten; the passions, if any there be, which have excited or favored this prosecution, will subside; but the consequence of the judgment you are about to render will outlive both them and you. The Respondent is now brought, a single unprotected individual, to this formidable bar of judgment, to stand against the power and authority of the State. I know you can crush him, as he stands before you, and clothed as you are with the sovereignty of the State. You have the power "to change his countenance, and to send him away."-Nor do I remind
you that your judgment is to be rejudged by the community; and as you have summoned him for trial to this high tribunal, you are soon to descend yourselves from these seats of justice, and stand before the higher tribunal of the world. I would not fail so much in respect to this Hon. Court, as to hint that it could pronounce a sentence, which the community will reverse. No sir, it is not the world's revision, which I would call on you to regard; but that of your own consciences when years have gone by, and you shall look back on the sentence you are about to render. If you send away the Respondent, condemned and sentenced, from your bar, you are yet to meet him in the world, on which you cast him out.-You will be called to behold him a disgrace to his family, a sorrow and a shame to his children, a living fountain of grief and agony to himself.
If you shall then be able to behold him only as an unjust judge, whom vengeance has overtaken, and justice has blasted, you will be able to look upon him, not without pity, but yet without remorse. But, if, on the other hand, you shall see, whenever and wherever you meet him, a victim of prejudice or of passion, a sacrifice to a transient excitement; if you shall see in him, a man, for whose condemnation any provision of the constitution has been violated, or any principle of law broken down; then will he be able-humble and low as may be his condition-then will he be able to turn the current of compassion backward, and to look with pity on those who have been his judges. If you are about to visit this Respondent with a judgment which shall blast his house; if the bosoms of the innocent and the amiable are to be made to bleed, under your infliction, I beseech you to be able to state clear and strong grounds for your proceeding. Prejudice and excitement are transitory, and will pass away. Political expediency, in matters of judicature, is a false and hollow principle, and will never satisfy the conscience of him who is fearful that he may have given a hasty judgment. I earnestly entreat you, for your own sakes, to possess yourselves of solid reasons, founded in truth and justice, for the judgment you pronounce, which you can carry with you, till you go down into your graves; reasons, which it will require no argument to revive, no sophistry, no excitement, no regard to popular favor, to render satisfactory to your consciences; reasons which you can appeal to, in every crisis of your lives, and which shall be able to assure you, in your own great extremity, that you have not judged a fellow creature without
Sir, I have done with the case of this individual, and now leave him in your hands. But I would yet once more appeal to you as public men; as statesmen; as men of enlightened minds, capable of a large view of things, and of foreseeing the remote consequences of important transactions; and, as such, I would most earnestly implore you to consider fully of the judgment you may pronounce. You are about to give a construction to constitutional provisions, which may adhere to that instrument for ages, either for good or evil. I may perhaps overrate the importance of this occasion to the public welfare; but I confess it does appear to me that if this