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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
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 po 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 see, 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
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, i' 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 it 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