and void, the legislature had the candor and the wisdom to repeal the law. This example, so honorable to the State which exhibited it, is most fit to be followed on this occasion. And there is good reason to hope that a State, which has hitherto been so much distinguished for temperate counsels, cautious legislation, and regard to law, will not fail to adopt a course which will accord with her highest and best interests, and in no small degree elevate her reputation.

It was for many and obvious reasons most anxiously desired that the question of the power of the legislature over this charter should have been finally decided in the State court. An earnest hope was entertained that the judges of the court might have viewed the case in a light favorable to the rights of the trustees. That hope has failed. It is here that those rights are now to be maintained, or they are prostrated for ever. Omnia alia perfugia bonorum, subsidia, consilia, auxilia, jura ceciderunt. Quem enim alium appellem? quem obtester? quem implorem? Nisi hoc loco, nisi apud vos, nisi per vos, judices, salutem nostram, quæ spe exigua extremaque pendet, tenuerimus; nihil est præterea quo confugere possimus.

DEFENCE OF JUDGE JAMES PRESCOTT.*

A PETITION having been presented to the House of Representatives of the Commonwealth of Massachusetts, praying an inquiry into the official conduct of James Prescott, Esquire, Judge of Probate of Wills for the County of Middlesex, and charging him with misconduct and maleadministration in office; and having been referred to a committee, who reported a statement of facts, together with resolutions setting forth that the said Prescott ought to be impeached therefor, at the bar of the Senate of the Commonwealth; on the 2d day of February, 1821, an order was passed accordingly, and the Senate demanded to take measures for his impeachment and appearance to answer thereto. A committee was thereupon appointed to prepare and report articles of impeachment; and John Glen King, Levi Lincoln, William Baylies, Warren Dutton, Samuel P. P. Fay, Lemuel Shaw, and Sherman Leland, Esquires, were appointed managers. Fifteen articles of impeachment were exhibited and read.

The articles substantially charged him with holding probate courts for transacting business at other times than those authorized by law, demanding and taking illegal fees, and acting as counsel, and receiving fees as such, in cases pending in his own court, before him, as judge.

After receiving the respondent's answer to the articles of impeachment, and hearing the evidence in support of and against the same, Messrs. Leland, Shaw, and Dutton argued the case in behalf of the managers. Mr. Hoar then opened the argument on the part of the respondent; Mr. Blake followed, and was succeeded by Mr. Webster, who spoke as follows.

MR. PRESIDENT,- I agree with the honorable managers in the importance which they have attributed to this proceeding. They

Argument on the Impeachment of James Prescott, before the Senate of Massachusetts, on the 24th of April, 1821.

have, I think, not at all overrated that importance, nor ascribed to the occasion a solemnity which does not belong to it. Perhaps, however, I differ from them in regard to the causes which give interest and importance to this trial, and to the parties likely to be most lastingly and deeply affected by its progress and result. The respondent has as deep a stake, no doubt, in this trial, as he can well have in any thing which does not affect life. Regard for reputation, love of honorable character, affection for those who must suffer with him, if he suffers, and who will feel your sentence of conviction, if you should pronounce one, fall on their own heads, as it falls on his, cannot but excite in his breast an anxiety, which nothing could well increase, and nothing but a consciousness of upright intention could enable him to endure. Yet, Sir, a few years will carry him far beyond the reach of the consequences of this trial. Those same years will bear away, also, in their rapid flight, those who prosecute and those who judge him. But the community remains. The Commonwealth, we trust, will be perpetual. She is yet in her youth, as a free and independent State, and, by analogy to the life of individuals, may be said to be in that period of her existence when principles of action are adopted and character is formed. The honorable respondent will not be the principal sufferer, if he should here fall a victim to charges of undefined and undefinable offences, to loose notions of constitutional law, or novel rules of evidence. By the nature of moral retribution, the evil of such a course would fall most heavily on the State which should pursue it, by shaking its character for justice, and impairing its principles of constitutional liberty. This, Sir, is the first interesting and important impeachment which has arisen under the constitution of the Commonwealth. The decision now to be made cannot but affect subsequent cases. Governments necessarily are more or less regardful of precedents, on interesting public trials, and as, on the present occasion, all who act any part here have naturally considered what has been done and what rules and principles have governed, in similar cases, in other communities, so those who shall come after us will look back to this trial. And I most devoutly hope they may be able to regard it as a safe and useful example, fit to instruct and guide them in their own duty; an example full of wisdom and of moderation; an example of cautious and temperate justice;

an example of law and principle successfully opposed to temporary excitement; an example indicating in all those who bear a leading part in the proceedings a spirit fitted for a judicial trial, and proper for men who act with an enlightened and firm regard to the permanent interests of public constitutional liberty. To preserve the respondent in the office which he fills, or to deprive him of it, may be an object of little interest to the public. But on what principles he is to be so preserved or deprived is an inquiry in the highest degree important, and in which the public has a deep and lasting interest.

The provision which the constitutions of this and other States have made, for trying impeachments before the Senate, is obviously adopted from an analogy to the English constitution. It was perceived, however, and could hardly fail to be perceived, that the resemblance was not strong between the tribunals clothed with the power of trying impeachments in this country and the English House of Lords. This last is not only a branch of the legislature, but a standing judicature. It has jurisdiction to revise the judgments of all other courts. It is accustomed to the daily exercise of judicial power, and has acquired the habit and character which such exercise confers. There is a presumption, therefore, that it will try impeachments as it tries other causes, and that the common rules of evidence, and the forms of proceeding, so essential to the rights of the accused, which prevail in other cases, will prevail also in cases of impeachment. In the construction of our American governments, although the power of judging on impeachments could probably be nowhere so well deposited as with the Senate, yet it could not but be perceived beforehand that this high act of judicature was to be trusted to the hands of those who did not ordinarily perform judicial functions; but who occasionally only, and on such occasions, moreover, as were generally likely to be attended with some excitement, took upon themselves the duty of judges. It must, nevertheless, be confessed, that few evils have been as yet found to result from this arrangement. Although in the various States of the Union there have been several impeachments, there have been fewer convictions, and fewer still in which there is just reason to suppose injustice has taken place. From the experience of the past, I trust we may form favorable anticipations of the future,

and that the judgment which this court shall now pronounce, and the rules and principles which shall guide that judgment, will be such as shall secure to the community a rigorous and unrelenting censorship over maleadministration in office, and to individuals entire protection against prejudice, excitement, and injustice.

The respondent is impeached for various instances of alleged misconduct in his office, as Judge of Probate for the County of Middlesex. In order that we may understand the duties which he is charged with violating, it is necessary to inquire into the origin and nature of these duties, and to examine the legal history of the Commonwealth in regard to the officers who, from time to time, have executed and performed these duties. It is now two centuries since our ancestors established a colony here. They brought with them, of course, the general notions with regard to property, the administration of justice, and the peculiar powers and duties of different tribunals, which they had formed in the country which they left; and these notions and general ideas they adopted in practice, with such modifications as circumstances rendered necessary. In England, they had been accustomed to see the jurisdiction over wills and administrations exercised in the spiritual courts, by the bishops or their ordinaries. Here, there were no such courts. Still it was a necessary jurisdiction, to be exercised by some tribunal, and in the early history of the colony it was exercised by the same magistrates, or some of them, on whom the other portions of judicial power were conferred. were proved and administrations granted by the county magistrates, essentially in the same manner as in England by the bishops or their delegates. It seems that any two magistrates, with the clerk of the county court, might prove a will, and cause it to be recorded in the county court, and might grant administrations in like manner.*

Wills

At length, by the act of 1685,† it was expressly declared that the county court, in cases of probate of wills and the granting of administrations, should have the same power and authority as the ordinary in England.

* Ancient Charters, 204.

VOL. V.

43

† Ibid. 205.