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he received at the customary rates, without objection. It ought to be considered therefore as a voluntary payment.

This differs this case altogether from that cited from Coke. There the party refused to do an official act, till an illegal sum was paid. It was an act which the party had a right to have performed—to have it then performed-and to have it performed for a stated fee--refusing to do his duty, in this respect, till other fees were paid, the officer doubtless was guilty of extortion. But in this case the money was paid voluntarily for services rendered voluntarily. Most of the services were not, strictly speaking, official services. As before observed, the petition, bond, &c. might have been prepared elsewhere, if the party had so chosen. If he had so chosen, and had produced those papers, regularly prepared and executed, and the judge had then refused him a grant of administration, until he had, nevertheless, purchased a set of these papers out of the probate office, then this case would have resembled the one quoted. As the facts are, I think there is no resemblance.

I have, thus far, endeavoured to show that the Respondent's conduct, in relation to fees, was legal. If we have failed in this, the next question is, whether his conduct be so clearly illegal, as to satisfy the Court that it must have proceeded from corrupt motives. And it is to this part of our case, that we supposed the evidence of what had been usual in other courts, and thought to be legal by other judges would be strictly applicable and highly important.

It was certainly our belief, that as the Respondent is accused of receiving illegal and excessive fees, in cases where fees are not limited by any positive law, the usage and practice of other judges, in similar cases, known to the whole Commonwealth, and continued for many years, would be evidence on which the Respondent might rely to rebut the accusation of intentional wrong: - We have shown to this tribunal, that in an indictment on this same statute, in the Supreme Judicial Court, evidence of this sort was admitted, and the defendant acquitted on the strength of it. ed it a plain dictate of common sense, that where a judge was accused of acting contrary to law, he might show, if he could, that he acted honestly, though mistakenly, and, to this end, he might show that other judges had understood the law in the same way as he had understood it. And if he were able to show, not only that one judge, but many, and indeed, all judges had uniformly understood the law as he himself had, it would amount to a full defence. The Jearned Managers have opposed the introduction of this evidence; and have prevailed on this court to reject it. Setting out with the proposition, that, by law, the Respondent could receive no fees, where none are expressly provided by statute, they have followed up this doctrine to the conclusion, that if fees have been taken in any such case by the Respondent, he must be convicted, although he should be able to show, as he is able to show, that every court, and every judge in the State has supposed the law to be otherwise, than the Managers now assert it, and have uniformly acted upon that supposition. I am not, sir, about to enter into another discussion, on this point. I am persuaded it would be fruitless. The questions which we proposed to put to the witnesses are in writing,

We had suppos

and therefore cannot easily be misrepresented. The Court has, on the objection of the Managers, overruled these questions, and shut out the evidence. As a matter decided in the cause, and for the purposes of the cause, we must, of course, submit to the decision. Still the question recurs, if the known usage and practice of the courts, offered no rule or guide, by which the Respondent was to direct his conduct, in relation to fees for services not enumerated in the fee bill—what rule was to direct him? What is the law, which he has broken? We ask for the rule, which ought to have governed his conduct, and has not governed it; we receive for answer nothing intelligible but this, that where the statute has not expressly given fees, no fees are due, and it is illegal and impeachable to receive them. If the Court should be of that opinion, a case is made out against the Respondent, If it should not be of that opinion, as we trust it will not, then we submit that no case has been made out against him, on this charge.

As to the charge of having refused to give Tarbell an account of items or particulars of the fees demanded, it is enough to say the charge is not proved. On his cross examination the witness would not state that he asked for items or particulars. He appears simply to have wished a general voucher, to show what sums he had paid for expenses in the probate office, and to have been told that such voucher was not necessary, as the sums would be of course allowed in his account.

I now ask, sir, where is the proof of corruption, in relation to any of the matters charged in this first article? Where is the moral turpitude, which alone ought to subject the Respondent to punishment? Is there anything in the case which looks like injustice or oppression? As to the special courts, holden for the convenience of the party, no injury arose from them to anybody. The witness himself says they were a great accommodation to him, and saved the estate much money. One learned Manager has said these courts may lead to inconvenience and abuse. He has taxed his ingenuity to conjecture, rather than to show, what possible evils might hereafter arise from them. Yet he does this with the statute open before him, which expressly authorises these courts, and the repeal of which would seem to be the proper remedy to relieve him from his apprehensions.

On the whole, sir, I trust that the Respondent has been able to give a satisfactory answer to everything contained in the first article, That he is not only not legally proved to be guilty, but that his conduct was in all respects unblamable and inoffensive;—and that he will go from this cause, not only acquitted of the charges in the article, but also, without having suffered, in his reputation, from the investigation which it has occasioned.

Mr. President, the remarks which have been made on the first article, are generally applicable to the four succeeding, and render it unnecessary to comment on those articles, separately and particularly.

The sixth article turns out to be so little supported by any proof, that I do not deem it necessary to add to what has been said upon it. The testimony of Dr. Prescott, and the date of the letter produced, set this long forgotten occurrence in its true light,

The seventh article appears to me to be a mere nullity. It charges no official misconduct whatever. The learned Managers, I suppose, are of the same opinion, otherwise they would have been content with our admission of the article, as it stands, and not have contended so ardently, for the privilege of proving what was not stated. I have found myself, sir, more than once mistaken, in the course of this trial, but have not felt more sensible, at my own mistakes, on any occasion, than when I found myself wrong in supposing that neither the learned Managers, nor any other lawyers, could be found to contend, that in a criminal case more could be proved against a defendant, than had been stated; and that it was not enough for such defendant to admit the truth of the facts in the written allegation against him, precisely as they stood, and to demand the judgment of the court thereon. The constitution says that every man's offence shall be fully and plainly, substantially and formally described and set forth. The learned Managers seem so to construe this provision, as that, nevertheless, if facts be not alleged which show any offence at all to have been committed, still other facts may be found, under the words unlawfully and corruptly, which shall amount to an offence. A commentary this, sir, on the constitution of the Commonwealth, of which I imagine the profession generally will not be emulous of dividing the credit with the Honorable Managers.

This seventh article charges the Respondent with no misbehavior as a judge. The only offence imputed to him is one which he is said to have committed as an attorney. These over-shadowing words, “ unlawfully and corruptly,” beneath the protection of which the learned Managers have sought to shelter themselves, are applied to the Respondent's conduct simply as an attorney at law, and not as judge of probate.

It is proved, in point of fact, that the Respondent performed certain merely clerical labor for a guardian, for which he was paid a reasonable and moderate compensation. The sum thus paid him was allowed, and as we suppose justly allowed, in the subsequent settlement of the guardian's account.

The eighth, ninth, tenth, eleventh, thirteenth and fourteenth articles have been fully considered by my colleagues, and I will not detain the Court with further remarks on those articles.

It is the twelfth, of these articles, sir, on which the learned Managers seem most confidently to rely. Whatever becomes of the rest of the case, here, at least, there is thought to be a tenable groundHere is one verdant spot, where impeachment can flourish; a sort of Oasis, smiling amid the general desolation, which the law and the evidence have spread round the residue of this accusation.

I confess, sir, that I approach to the consideration of this article, not without some apprehension. But that apprehension arises from nothing in the real nature of the charge, or in the evidence by which it is supported. My apprehension and alarm arise from this; that in a criminal trial, on a most solemn and important occasion, so much weight should be given to mere coloring, and declamation, under the form of a criminal accusation. In my judgment, sir, there is serious cause of alarm, when in a court of this character, accusations are brought forward, so exceedingly loose and indefi

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 repeateddemand 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 proposilion 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 independent 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 but 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 er 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 wnrich 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. Nor 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.

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