do you question his right to this office? Has he not paid for it?" In 1853 he was counsel for the managers on behalf of the Assembly on the trial of John C. Mather, one of the Canal Commis sioners of the State of New York in the Court of Impeachments. His argument of this case appears to me the most close, pow erful, and logical of any which I have had opportunity of reading; but it would be diffi cult to make extracts from it which would be intelligible. It being understood that the propositions which I shall quote below were made upon the trial of a public officer im peached for malfeasance in the performance of statutory duties, a single one will indicate the way in which Porter wove together propositions of law which he intended to apply to an assumed or proven state of facts : — "The learned counsel for the respondent and we agree upon one proposition, that where a dis cretionary power is confided, a corrupt intent must be proved to render the party either indictable or impeachable. "There is another proposition upon which we shall not differ, and that is, that where there is an infraction of positive law vesting no discretion in the party violating it, the intent is not to be proved, but presumed. Where there is a positive statute enjoining a duty, or prohibiting a wrong, with the officer, as with the citizen, the first, the simple, the paramount duty, is to obey. A violation of a man datory law is per se corrupt. The pretext of the culprit, that he cannot understand the statute which imposes a command on him, is idle. It is not like the case of a judge, who is to construe laws, affecting doubtful and civil rights between third parties. There he is bound honestly to seek the truth, but not to find it! But if a judge is commanded by statute to commence no trial on the Sabbath day, he cannot say in excuse of his infraction of the act : ' In my judgment public policy is against this provision. I will therefore assume that the lawgiver had in mind, not the Christian, but the Jewish sabbath; and I will hold my court and commence my trials on Sunday as on Monday.' Sir, in this case the statute enjoined plain duties upon the respondent; he was to go
so far, and no farther. As a member of the Let ting Board, he had no authority except to contract under ihe direction of the Canal Board. As a member even of the Canal Board, he had no dis cretion to exercise except upon the three elements prescribed by law, — price, ability, security. He was not at liberty to seek pretexts for evading the statute." In 1857 I saw him for the first time, while making an argument before a select committee of the Senate of the State of New York, as counsel for the disfranchised corporators of Trinity Church. Judge Por ter introduced the subject by saying : — "In behalf of the great body of the Episcopa lians of New York, who for forty-two years have been excluded by an act of legislative suspension from the exercise of their corporate rights, I appear to ask that the barrier to the enjoyment of those rights may now be removed. If we are to rest our case upon a simple comparison of the second section of the Act of 18 14, with even those por tions of the charter and subsequent grants, read by my learned friends in aid of the exclusive claims of Trinity, in the course of the able argu ments which have just been closed, no room would be left for doubt that the claimants would still be in the undisturbed possession of their franchises, but for this act of legislative exclu sion; an act procured on the application of Trin ity vestry in fraud of the beneficiaries of the trust, and operating as a great wrong, unintended indeed by the Legislature, but none the less unjust to those whose rights were shorn away, none the less disastrous to the interests of the church at large, none the less at war with the provisions of the State and Federal Constitutions." The argument exhibited a profound com prehension of those fundamental principles of association upon which all clubs, churches, political societies, and even free governments must stand if they are to stand safely. I was a casual spectator, not yet admitted to the bar. I was not an Episcopalian, nor had I any grievance against Trinity Church, not being even an heir of Anneke Jans. But the opening words of Mr. Porter thrill my memory still. They were low and sonorous;
