PRESIDENT. It is with great pain that I find myself called on to act on this occasion. It is well known from the vote that I have given what my own opinion is in relation to the case. But a question has been taken by this board, and they have decided on two of the articles against the Respondent. I have never known it to be the practice of any court, after having come to an opinon and declared it, unless there was immediate notice given of some motion to be made, to adopt any other course than to proceed to determine what judgment should be pronounced.

Mr. DWIGHT. I think the Respondent has had every reasonable indulgence. I move that the Court proceed to pronounce judgment.

Mr. WEB TER. The Respondent's counsel thoug it decorous to wait until they had an intimation that they should be heard. I can only say, that as far as my practice has extended, it has been usual to hear a motion in arrest of judgment, if any is made, before the judgment is determined

on.

If I

Mr. PICKMAN. I did think as I stated before, tha he subject was open for the Respondent's counsel, to make any observations either to obtain an arrest of judgment, or a mitigation of the sentence. am mistaken I now move, that the Court hear any remarks, which the Respondent's counsel may now offer, and that they deliberate upon them before proceeding to pronounee sentence.

Mr. SULLIVAN. I would propose to the Hon. gentleman so to amend his motion, that the President shall ask the Respondent whether he has any thing to say why judgment should not be pronounced, or in relation to the degree of punishment to be awarded against him.

Mr. WELLES. I do not rise to any technical point, for these I do not wish to meddle with, but merely to observe, that I did not consider that any decision was made in relation to the sentence, but on the condition that nothing should be suggested on behalf of the Respondent, in mitigation of sentence or in arrest of judgment.

Mr. Pickman withdrew his motion, and Mr. DOOLITTLE offered the following in writing :-That the Court v now hear and consider any suggestion from the Respondent in mitigation of sentence, or in arrest of judgment.

The motion was agreed to.

PRESIDENT. The Court is now open to hear any motion from the Respondent, either in arrest of judgment or itigation of

sentence.

Mr. WEBSTER. If I am to under

stand the meaning of the order or resolution which has just passed to be, that the Court has not made up its judgment, and that the sentence is a subject yet to be deliberated upon, I have something which I wish to say to the Court. But I wish to know whether I am right in giving such a construction to the vote just passed.

PRESIDENT. The learned counsel has the order before him and can judge for himself. [The President reads the order.]

Mr. WEBSTER. I am not a member of the Hon. Court, and have no right to construe its orders. I wish to know distinctly from the head of the Court how I am to understand it.

PRESIDENT. This Court, following the precedents of the courts of common law, after having heard the Managers on the part of the House, and the Respondent in his defence, by a majority of votes pronounced the Respondent guilty; they have also agreed on the sentence to be pronounced by me as their organ, if no sufficient reason should be offered why the sentence should not be pronounced. But they have now voted, that they will hear any suggestions from the Respondent's counsel, either in arrest of judgment or in mitigaion of the sentence. There can be no doubt, that if the counsel for the Respondent shall offer any reason for an arrest of judgment, or in favor of a milder sentence, that shall induce any member to change his opinion, that member will move the Court to proceed to deliberate further upon the sen

tence.

Mr. WEBSTER. If the opinion of the Court is already formed, and I am to understand that my client is put to the disadvantage of moving for a reconsideration of their opinion, I shall decline making any remark.

PRESIDENT (after a short pause) No motion in arrest of judgment being made by the Respondent, if no motion is made by any member of the Court, I shall proceed to pronounce the sentence of the Court.

After a pause the president pronounced judgment and sentence as follows, viz :

The Court for the trial of impeachment having found James Prescott guilty of misconduct and maladministration in the office of Judge of Probate of wills and for granting letters of administration within and for the county of Middlesex, charged upon him in the third article and twelfth article of impeachment as charged against him by the House of Representatives-It is considered by the Court, that the said James Prescott be removed from the office of Judge as aforesaid, for the county aforesaid, and he is removed accordingly.

The Court, on motion of Mr. Lyman, was then adjourned without day,

A SHORT account of the former impeach ments in this Commonwealth, since the adoption of the constitution, collected from the journals of the Senate and House of Representatives, will not, we trust, be unacceptable to our readers, especially to such of them as shall hereafter be engaged in trials of this nature.

The first case which we find upon record. is that of William Greenleaf, Esq. sheriff of the county of Worcester, as early as the year 1788. The course of proceedings in his case differs in several particulars from that pursued in relation to Judge Prescott. The attention of the House of Representatives was first called to the subject by petitions of the inhabitants of the towns of Petersham and Hardwick against W. G. for ilJegal conduct in his office of sheriff, praying for an inquiry thereon, and that he might be impeached if found guilty. On the 7th of March these petitions were read and committed. On the 11th the committee reported an order, which was accepted, "that the petitioners serve said W. G. Esq. with a copy of their petitions, and of this order thereon, at least thirty days before the second Wednesday of the next session of the General Court, that he appear on that day, to show cause, if any he has, why the prayer of their said petitions should not be granted. And also the petitioners are hereby required to appear on said day with their evidence to support the charges alleged in their said petitions against the said W. G." This order was duly served, and on the 4th of June a committee was appointed to consider the complaints of the towns of Petersham and Hardwick, and to hear the parties and report. This committee was discharged on the 5th, and it was ordered that the parties be admitted to a hearing on the floor of the House the next day, and that either of the parties be heard by themselves or one counsel. On the 6th the hearing was postponed, at the request of W. G. until the next morning. On the 7th a representation of one of the agents of Petersham, praying a postponement of the hearing to the next session, was referred to a committee, who reported the same day. Whereupon it was ordered, that an order issue for any witnesses to support the complaint, which said agent may request, and that Mr. Kinsley of Hardwick, be a committee to attend to the serving of such order. On the 11th, in the forenoon,

the House sent a message to the Senate, that they were about to proceed upon a public hearing, and could not conveniently receive any messages at present, but that they would inform the Senate when the hearing was over. The complainants were then admitted, by their agent, on the floor of the House, and the said W. G. by himself, and one counsel, and were heard upon the subject of the complaints in part. In the afternoon the subject was resumed, and after a full hearing, the parties had leave to withdraw. After debate, the further consideration of the subject was postponed to the next morning. On the 12th the House resumed the consideration of the complaints, and the following question was put-"whether the evidence exhibibited to this House be a sufficient ground for bringing forward articles of impeachment against W. G. &c. for misconduct and maladministration in his office?" The members present were 167; of whom 157 voted in the affirmative. It was then ordered that Messrs. Phelps,Dawes, Bowdoin, Choate and Bourne be a commitlee to prepare articles. This committee on the 14th reported six articles, which were read and accepted, and thereupon Messrs. Heath, Dawes, Ames, Phelps and Choate were appointed a committee to carry them up to the Senate. The articles are preceded by a full recital of the prior proceedings, in which however no reference is made to the petition of the town of Hardwick. The recital concludes-" And whereas it doth appear, that the charges laid in the petition aforesaid are well founded and substantiated, and that the said W. G. Esq. &c. is guilty of misconduct and maladministration in that office-Therefore this House of Representatives do offer and present to the said Hon. Senate, against the aforesaid W. G. &c. all and singular the general and special articles of impeachment following; viz. 1. The said W. G. &c. hath illegally and uujustly, from time to time, detained in his own hands, for his own private use, public monies, when the Commonwealth had a right to, and was in great want of the same." This may safely enough be presumed to be one of the general articles abovementioned; it will be found more difficult to determine which are the special. The 2d Art. accuses the said W. G. in much the same informal manner, of having exhibited to the Treasurer of this Commonwealth in order to be laid before

66

the House of Representatives thereof, false and dishonest accounts of monies which he, as sheriff aforesaid, had collected in payment of public taxes." The 3d Art. alleges, that he had "from time to time, and for the space of more than two years together, illegally detained in his own hands, and for his own private use, certain monies belonging to the aforesaid inhabitants of the town of Petersham for which he never accounted to them " Art. 4th is, that on a certain day he "did procure from the Treasurer of the Commnonwealth an execution for money, which money he had then already received on a former execution." Art. 5th sets forth, rather more at length than the others, that he falsely returned to the Treasurer a certain execution as unsatisfied, upon which he had received a certain sun in part satisfaction. The 6th and last is, that on a certain day he did ❝ unjustly procure a warrant of distress to be served on the inhabitants of Petersham aforesaid for a large sum of money, which he then well knew they had long before paid." All which the House of Representatives say they are ready to verify, and that they do thereupon, as the Grand Inquest of the Commonwealth, impeach the said W. G. of all and singular the misconduct and maladministration in his said office of sheriff, &c. contained and alleged in the articles aforesaid; saving to themselves by protestation the liberty of exhibiting further complaints, and concluding with a prayer that the said. W. G. may be notified to make answer, and be brought to a trial, and, if found guilty, removed from his office; and that such other judgment may be rendered thereon, as shall be agreeable to the law and the constitution. The summons issued upon this occasion by the Senate was dated June 19th, 1788, and was directed to any or either of the coroners of the county of Worcester, who were therein commanded" to summon W. G. &c. to appear before our Senate on the second Wednesday of the next sitting of the General Court, at &c. by serving him with an attested copy of the foregoing articles of impeachment and this summons, or by leaving the same at his last and usual place of abode, thirty days at the least before the said second Wednesday, &c. to make answer, &c. and to receive such judginent," &c. The House were informed on the 20th, of the issuing of this summons, in ́ order that they might be then and there prepared to support their charges. On the same day the House ordered that Messrs. Parsons, Kinsley, Ames, Dawes and Bourn be Managers; who were "authorised, required and directed to procure the necessary evidence," &c. The clerk was directed to furnish each of them with a copy of the articles. The House also passed a Resolve for staying all law processes in the hands of

W. G. &c. &c. which was sent up for concurrence. The entry on the Senate's journal of the same day is-Resolve requiring W. G. to give bond for the faithful discharge of his office, read and concurred, as taken into a new draft-sent down for concurrence -came up concurred. The printed Resolve of this date is general that the Governor be requested to inquire whether the sheriffs and coroners have given bonds, &c. and to take certain measures in relation to any that have not.

The General Court was prorogued once by message from the Governor, and twice by proclamation, until the 29th of Oct. On the 5th of Nov. the House ordered that the Managers proceed in the prosccution of the business committed to them with all convenient speed. It was voted that the House would attend the trial; and a message was sent to inform the Senate, that in case they were inclined to sit as a court in the Representatives chamber, the usual seats would be assigned for their members. The Senate returned an answer that they thought it would be most convenient to proceed to the trial in Faneuil Hall and that seats would be assigned for the members of the House if they should choose to attend.

This same day, it being the second Wednesday of the sitting of the Legislature, the Senate was organized as a court. The Lt. Governnor, at the request of the Senate, administered the oath to the members collectively; the form of the oath being the same as in the trial of Judge Prescott, except in its commencement, which was "You A. B. C. &c. do respectively solemnly swear" &c. When the Respondent was put to his plea, he waved it, until an agreement in writing was made and signed by three of the Managers and himself, that under the general plea of not guilty he should be allowed to give any special matter in evidence; and if the trial should not proceed at that time, he might plead anew, and specially, if he pleased; which agreement was admitted by the Court. He then pleaded not guilty. His counsel then moved that the trial be postponed to a future day; which was objected to by the Managers, but finally granted by the Court, after a full hearing of counsel at Faneuil Hall. On the 11th the House reconsidered their vote to attend the trial. The Court again met, and the Respondent, waving his former plea, made a formal answer. To the first article, after setting forth the Declaration of Rights, that “no subject shall be held to answer to any crime or offence, until the same is fully and plainly. substantially and formally described to him," he demurs generally, averring" that the supposed charge in the same article is too general to be understood, in such a manner as will enable him the said William to make