diction of the English ecclesiastical courts has not, in any part of it, devolved on, and been granted to, the judges of probate here. As it is not perhaps material for the present discussion, to ascertain precisely what is the true distinction between the voluntary and the contentious jurisdiction of the ecclesiastical courts, as understood in England, I shall content myself with reading a single authority on the subject. Dr. Burn (vol. 1, p. 292) says;-"Voluntary jurisdiction is exercised in matters which require no judicial proceeding, as in granting probate of wills, letters of administration, sequestration of vacant benefices, institution, and such like; contentious jurisdiction is, where there is an action or judicial process, and consisteth in the hearing and determining of causes between party and party." It can be now at once seen, sir, whether any part of the jurisdiction exercised by judges of probate in this State, be voluntary, within this definition of the distinction between voluntary and contentious.

After these observations, sir, on the general nature and origin of fees, accruing in the probate offices, I shall proceed to a consideration of the charges contained in these articles.

of

And the first inquiry is, whether any misconduct or maladministration in office, is sufficiently charged, upon the Respondent, in any of them. To decide this question, it is necessary to inquire, what is the law governing impeachments; and by what rule questions arising in such proceedings are to be determined. My learned colleague, who has immediately preceded me, has gone very extensively into this part of the case. I have little to add, and shall not detain you by repetition. I take it, sir, that this is a court; that the Respondent is brought here to be tried; that you are his judges; and that the rule your decision is to be found in the constitution and the law. If this be not so, my time is misspent in speaking here, and yours also in listening to me. Upon any topics of expediency, or policy; upon a question of what may be best, upon the whole; upon a great part of those considerations, with which the leading Manager opened his case, I have not one word to say. If this be a court, and the Respondent on his trial before it; if he be to be tried, and can only be tried for some offence known to the constitution and the law; and if evidence against him can be produced only according to the ordinary rules, then, indeed, counsel may possibly be of service to him. if other considerations, such as have been plainly announced, are to prevail, and that were known, counsel owe no duty to their client which could compel them to a totally fruitless effort, for his defence. I take it for granted, however, sir, that this court feels itself bound by the constitution and the law; and I shall therefore proceed to inquire whether these articles, or any of them, are sustained by the constitution and the law.

But

I take it to be clear, that an impeachment is a prosecution for the violation of existing laws; and that the offence, in cases of impeachment, must be set forth substantially in the same manner as in indictments. I say substantially, for there may be, in indictments, certain technical requisitions, which are not necessary to be regarded in impeachments. The constitution has given this body the power of trying impeachments, without defining what an impeachment is,

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 cccasion 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 Hatsell'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.

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.