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and therefore necessarily introducing, with the term itself, its usual and received definition, and the character and incidents which belong to it. An impeachment, it is well known, is a judicial proceeding. It is a trial, and conviction in that trial is to be followed by forfeiture and punishment. Hence, the authorities instruct us, that the rules of proceeding are substantially the same as prevail in other criminal proceedings. (2. Wooddeson, 611. 4. Bl. Comm. 259. 1. H P. C. 150. 1. Chitty's Criminal Law, 169.) There is, on this occasion, no manner of discretion in this court, any more than there is, in other cases, in a judge or a juror. It is all a question of law and evidence. Nor is there, in regard to evidence, any more latitude, than on trials for murder, or any other crime, in the courts of law. Rules of evidence are rules of law, and their observance on this occasion can no more be dispensed with than any other rule of law. Whatever may be imagined to the contrary, it will commonly be found, that a disregard of the ordinary rules of evidence, is but the harbinger of injustice. Tribunals which do not regard those rules, seldom regard any other; and those who think they may make free with what the law has ordained respecting evidence, generally find an apology for making free also with what it has ordained respecting other things. They who admit or reject evidence, according to no other rule than their own good pleasure, generally decide everything else by the same rule.

This being, then, a judicial proceeding, the first requisite is, that the Respondent's offence, should be fully and plainly, substantially and formally described to him. This is the express requisition of the constitution. Whatever is necessary to be proved, must be alleged; and it must be alleged with ordinary and reasonable certainty. I have already said, that there may be necessary in indictments, certain technical niceties, which are not necessary in cases of impeachments. There are, for example, certain things necessary to be stated, in strictness, in indictments, which, nevertheless, it is not necessary to prove precisely as stated. An indictment must set forth, among other things, for instance, the particular day when the offence is alleged to have been committed; but it need not be proved to have been committed on that particular day. It has been holden, in the case of an impeachment, that it is sufficient to state the commission of the offence to have been on or about a particular day. Such was the decision, in Lord Winton's case; as may be seen in 4th Halsell's Precedents, 297. In that case, the respondent, being convicted, made a motion to arrest the judgment, on the ground that "the impeachment was insufficient, for that the time of committing the high treason is not therein laid with sufficient certainty.” The principal facts charged in that case were laid to be committed "on or about the months of September, October, or November last;" and the taking of Preston, and the battle there, which are among the acts of treason, were laid to be done "about the 9th, 10th, 11th, 12th, or 13th, of November last.”

A question was put to the judges, "whether in indictments for treason or felony it be necessary to allege some certain day upon which the fact is supposed to be committed; or, if it be only alleged in an indictment that the crime was committed on or about a certain

day, whether that would be sufficient." And the judges answered, that it is necessary that there be a certain day laid in the indictment, and that to allege that the fact was committed on or about a certain day would not be sufficient. The judges were next asked, whether, if a certain day be alleged, in an indictment, it be necessary, on the trial, to prove the fact to be committed on that day; and they answered, that it is not necessary. And thereupon the lords resolved, that the impeachment was sufficiently certain in point of time. This case furnishes a good illustration of the rule, which I think is reasonable and well founded, that whatever is to be proved must be stated, and that no more need be stated. .

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In the next place, the matter of the charge must be the breach of some known and standing law; the violation of some positive duty. If our constitutions of government have not secured this, they have done very little indeed for the security of civil liberty. "There are two points," said a distinguished statesman, on which the whole of the liberty of every individual depends; one, the trial by jury; the other, a maxim, arising out of the elements of justice itself, that no man shall, under any pretence whatever, be tried upon anything but a known law." These two great points our constitutions have endeavoured to establish; and the constitution of this Commonwealth in particular, has provisions on this subject, as full and ample as can be expressed in the language in which that constitution is written. Allow me then, sir, on these rules and principles to inquire into the legal sufficiency of the charges contained in the first article.

And first, as to the illegality of the time or place of holding the court, I beg to know what there is stated, in the article, to show that illegality? What fact is alleged, on which the Managers now rely? Not one.-Illegality itself is not a fact, but an inference of law, drawn by the Managers, on facts known or supposed by them, but not stated in the charge, nor until the present moment made known to anybody else. We hear them now contending, that these courts were illegal for the following reasons, which they say are true, as facts, viz:

1. That the register was absent;

2. That the register had no notice to be present;

3. That parties had not notice to be present.

Now, not one of these is stated in the article. No one fact or circumstance, now relied on as making a case against the defendant, is stated in the charge. Was he not entitled to know, I beg to ask, what was to be proved against him? If it was to be contended that persons were absent from those courts who ought to have been present, or that parties had no notice, who were entitled to receive notice, ought not the Respondent to be informed, that he might encounter evidence by evidence, and be prepared to disprove, what would be attempted to be proved?

This charge, sir, I maintain is wholly and entirely insufficient. It is a mere nullity. If it were an indictment in the courts of law, it would be quashed, not for want of formality, or technical accuracy, but for want of substance in the charge. I venture to say there is not a court in the country, from the highest to the lowest, in which such a charge would be thought sufficient to warrant a judgment.

The next charge in this article is for receiving illegal fees for services performed. I contend that this also is substantially defective, in not setting out what sum in certain, the defendant has received as illegal fees. It is material to his defence that he should be informed, more particularly than he here is, of the charge against him. If it be merely stated that for divers services respecting one administration, he received a certain sum, and for divers others, respecting another, another certain sum, and that these sums were too large, (which is the form of accusation adopted in this case,) he cannot know for what service, or on what particular item, he is charged with having received illegal fees. The legal and the illegal are mixed up together, and he is only told that in the aggregate he has received too much. In some of these cases, there is a number of items, or particulars, in which fees are charged and received; but in the articles these items or particulars are not stated, and he is left to conjecture, out of ten, or it may be twenty, particular cases, which one it is, that the proof is expected to apply to.

My colleague has referred to the cases, in which it has been adjudged, that in prosecutions against officers for the alleged taking of illegal fees, this general manner of statement is insufficient. It is somewhat remarkable, that ancient acts of Parliament should have been passed expressly for the purpose of protecting officers, exercising jurisdiction over wills and administration, against prosecutions in this form; which were justly deemed oppressive. The st. 25, Ed. 3, cap. 9, after reciting, "that the king's justices do take indictments of ordinaries, and of their officers, of extortion, or oppressions, and impeach them, without putting in certain, wherein, or whereof, or in what manner they have done extortion;"-proceeds to enact, "That his justices shall not from henceforth impeach the ordinaries, nor their officers, because of such indictments of general extortions or oppressions, unless they say, and put in certain, in what thing, and of what, and in what manner the said ordinaries or their officers have done extortions or oppressions."

The charge in this case, ought to have stated the offensive act, for which the fee was taken; and the amount of the fee received. The Court could then see whether it were illegal. Whereas the article, after reciting certain services performed by the Respondent, some of which are mentioned in the fee bill, and others are not, alleges that for the business aforesaid the Respondent demanded and received other and greater fees than are by law allowed. Does this mean, that he received excessive fees for every service, or was the whole excess charged on one service? Was the excess taken on those particular services, for which a specific fee is given by the statute, or was it taken for those services not mentioned in the fee bill at all? But further; the article proceeds to state, that afterwards during and upon the settlement of said estate, the Respondent did demand and receive divers sums, as fees of office, other and greater than are by law allowed; without stating at all what services were rendered, for which these fees were taken! It is simply a general allegation, that the Respondent received from an administrator, in the settlement of an estate, excessive fees; without stating, in any manner whatever, what the excess was, or even what services were

performed. I beg leave to ask, sir, of the learned Managers, whether they will, as lawyers, express an opinion before this Court, that this mode of accusation is sufficient? Do they find any precedent for it, or any principle to warrant it? If they mean to say, that proceedings, in cases of impeachment, are not subject to rule; that the general principles applicable to other criminal proceedings do not apply; this is an intelligible, though it may be an alarming course of argument. If, on the other hand, they admit, that a prosecution by impeachment is to be governed by the general rules applicable to other criminal prosecutions; that the constitution is to control it; and that it is a judicial proceeding; and, if they recur, as they have already frequently done, to the law relative to indictments, for doctrines and maxims applicable to this proceeding; I again ask them, and I hope in their reply they will not evade an answer, will they, as lawyers, before a tribunal constituted as this, say, that in their opinion, this mode of charging the Respondent is constitutional and legal? Standing in the situation they do, and before such a Court, will they say, that, in their opinion, the Respondent is not, constitutionally and legally, entitled to require a more particular statement of his supposed offences? I think, sir, that candor and justice to the Respondent require, that the learned Managers should express, on this occasion, such opinions on matters of law, as they would be willing, as lawyers, here and elsewhere to avow and defend. I must therefore, even yet again, entreat them to say, in the course of their reply, whether they maintain that this mode of allegation would be sufficient in an indictment; and if not, whether they maintain, that in an impeachment, it is less necessary that the defendant be informed of the facts intended to be proved against him, than it is in an indictment. The learned Managers may possibly answer me, that it is their business only to argue these questions, and the business of the Court to decide them. I cannot think, however, that they will be satisfied with such a reply. Under the circumstances in which he is placed, the Respondent thinks that the very respectable gentlemen who prosecute him, in behalf of the House of Representatives, owe a sort of duty, even to him. It is far from his wish, however, to interfere with their own sense of their own duty. They must judge for themselves, on what grounds they ask his conviction from this Court. Yet he has a right to ask—and he does most earnestly ask, and would repeatedly and again and again, ask, that they will state those grounds plainly and distinctly. For he trusts, that if there be a responsibility, even beyond the immediate occasion, for opinions and sentiments here advanced, they must be entirely willing, as professional men, to meet that responsibility.

I now submit to this Court, whether the supposed offences of taking illegal fees, as charged in this article, are set forth legally and sufficiently; either by the common rules of proceedings in criminal cases, or according to the constitution of the State.

As to the manner of stating the offence in this article-I mean the allegation that the Respondent refused to give, on request, an account of items of fees received, it appears to me to be substantially right, and I have no remarks to make upon it. The question upon that will be, whether the fact is proved.

All the objections which have been made to the first article, apply equally to the second; with this further observation, that for the services mentioned in this article the fee bill makes no provision at all. The same objections apply also to the third, fourth, and fifth articles. It seems to us, sir, that all these charges for receiving illegal fees, without setting out, in particular, what service was done, and what was the amount of excess, are insufficient to be the foundation of a judgment against the Respondent. And especially all the articles, in which he is charged with receiving fees for services not specified in the fee bill; it being not stated, what he would be properly entitled to in such cases, by usage, and the practice of the courts, and there being no allegation that the sum received was an unreasonable compensation for the services performed. In this respect the articles consider that to be settled by positive law, which is not so settled. The second article, for example, alleges that the Respondent demanded and received, for certain letters of guardianship granted by him over persons non compotes mentis "other and greater fees than are by law allowed therefor."-This supposes, then, that some fees are allowed by law therefor; yet, this is the very case in which it has been contended by the Managers that no fee whatever was due; there being none mentioned in the fee bill. Between the words of the article, and the tenor of the argument, there appears to me to be no small hostility. Both cannot be right. They cannot stand together. There should be either a new argument to support the article, or a new article to meet the argument.

Having made these observations on the legal sufficiency of all the articles which charge the Respondent with holding unlawful courts, and demanding and receiving unlawful fees, before proceeding to those which advance charges of a different nature against him, allow me to advert to the evidence which has been given, on these five first articles respectively; and to consider what unlawful act has been proved against the Respondent in relation to the matters contained in them.

In the first place, it is proved, that the Respondent held a special Probate Court at Groton, October 14, 1816; and at such court granted letters of administration to one Tarbell. This court the register did not attend. With respect to parties concerned in the business then and there to be transacted, they all had notice, as far as appears; and no one has ever been heard to complain on that account.

It has now been contended, sir, by the learned Managers, that this court was holden unlawfully, because not holden at a time previously fixed by law. They maintain that judges of probate can exercise no jurisdiction, except at certain terms, when their court is to be holden.

On the contrary the Respondent has supposed, and has acted on the supposition, that he might lawfully hold his court, for the transaction of ordinary business, at such time and place as he might think proper; giving due and proper notice to all parties concerned. He supposes he might so have done, independently of the provisions of any statute; and he supposes, moreover, that he was authorised so to do, by the express provision of the statute of 1806.

The first inquiry, then, is, whether the probate courts, in this Commonwealth, be not courts which may be considered as always

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