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Who's WHO ON THE BENCH ? We, in this journal, have always endeavored to support to the extent of our ability, the respect and regard towards the judiciary of the states and of the nation, which are the main stay of their influence and power. We have been old fashioned enough to believe and maintain that all possible safeguards to this respect and regard should be exacted and maintained. We have occasionally seen, or thought that we saw, a tendency in some quarters, and as the effect of some popular measures, to weaken these feelings, and such measures and tendencies we have uniformly opposed. * The late proceedings in the Supreme Court of the City of New York, (a court of large powers, and of the highest original jurisdiction in the state), with reference to the disputed seat upon its bench, are not calculated, we think, to strengthen the hands of the friends of the judiciary. Were it not that the actors in this scene were persons of eminent gravity, Belected by their follow-citizens to be the interpreters and expounders of the law, and whose decisions have been and are of deserved authority and weight, we should be inclined to call the matter a farce. As it is, we will narrate the affair without that comment.
In February, 1855, Judge Edwards, whose term of office would have expired on the 31st of December last, died, and the governor immediately appointed Mr. Edward P. Cowles to fill the vacancy thus created. On the 25th of August in the same year, the secretary of state gave notice that at the ensuing election, a justice of the Supreme Court was to be elected in the place of Judge Cowles, whose term of office would expire on the 31st of December.
On the 23d of October, 1855, Judge Morris, of the same court, died, thus creating a vacancy, required by the constitution to be filled at the next election after the happening thereof. Either from want of time, or some other reason not apparent on the record, no official notice was given of an election to fill this vacancy. Each of the several parties, however, nominated a candidate, ostensibly for the seat thus vacated, and no less than four gentlemen received votes for this office. Among whom were Mr. Peabody and Mr. Davies On the 3d of December, 1855, Judge Cowles resigned the office to which he had been appointed on the death of Judge Edwards, and Mr. Peabody was appointed to fill it. He accepted the appointment, and acted under it for the space of twenty-seven days, when his term expired, and Mr. Whiting who had been duly elected to succeed to this office, entered upon its duties. On the same 3d of December, the governor, treating the votes in the fall for a judge in the place of Judge Morris as irregular, illegal and void, for want of due notice from the proper authorities, nominated Judge Cowles for the unexpired term of Judge Morris, and on the 6th of December, Judge Cowles entered upon the duties of that office. The attorney general immediately filed a bill in the nature of an information quo warranto against Judge Cowles, and to this proceeding, Mr. Davies, who had received at the fall election a plurality of the votes given for the candidates nominated to fill Judge Morris's vacancy, was made a party plain, tiff. To this bill Judge Cowles demurred, the Supreme Court in the city, composed of his associates on the bench, sustained the demurrer, and decided the election invalid. The case was removed to the Court of Appeals, and this decision was there overruled, that court holding the election valid, and in their judgment ordering, among other things, " that Henry E. Davies named in this complaint be, and he is hereby declared to be entitled to the said office by virtue of the election in said complaint mentioned.” On the 4th of February, succeeding the announce ment of this opinion, but before Mr. Davies had taken any action upon it, or endeavored to assume the office thus apparently secured to him, two of the judges of the Supreme Court addressed him a letter, stating that they had examined the claims of the "contestants" to the vacant seat; that, in their opinion, the votes given for him at the election in the fall were irregular in form and void for uncertainty, and that they considered Judge Peabody (another of the candidates not a party to the information) duly elected. To this letter Judge Davies replied. On the 14th of February, the court, consisting of three judges, among them Judge Peabody, came in at the usual hour, and almost at the same instant Judge Davies entered the court room, handed the clerk a copy of the opinion of the Court of Appeals, directing him to file it, asked an officer for a chair, and took his seat upon the bench. An hour later the court directed the clerk to make the following entry.
Ordered, That the court does not recognize any persons as judges present at this general term, except Judges Roosevelt, Clerke and Peabody, and that the clerk and other officers be directed to govern themselves accordingly.
The next morning, punctual to the moment, Judge Davies again appeared and took his seat of the previous day; a large crowd, induced by curiosity, had filled the court room. The other judges entered the room, and an officer handed Judge Peabody a chair, without either party speaking a word, or in any way recognizing the presence of the other. The sheriff opened the court, and the presiding justice immediately ordered its adjournment for a week. In a different apartment another judge was holding sittings in chambers, and upon the adjournment, Judge Davies walked directly into this room, was received by him with great cordiality, and invited to hold court; he immediately assented, took his seat, heard motions and granted orders in the exercise of his judicial discretion during the rest of the morning. This continued for some days, Judge Davies holding court at chambers, assuming to act as judge, and issuing his orders in the cases brought before him, decreeing divorces, and directing one or more arrests. The court, it is said, were divided in opinion. Some of the judges thinking that he should be recognized as judge, and others adhering to the doctrine of the letter already referred to. The officers of the court were left to act pretty much according to their discretion, and the clerk and the sheriff both finally declared for Judge Davies. The members of the bar appear to have been a little shy at first of this unrecognized judge, but their timidity was probably of short duration, for the Tribune of February 21st, announces Judge Davies as still holding court at chambers, and that he appeared to have less time for the newspapers than on preceding days.
On the 26th of February, two matters occurred which did not certainly disentangle this complicated knot. Judge Clerke, one of the signers of the letter, vacated an order of arrest granted by Judge Davies, on the ground that he was not de facto a judge of that court; and Judge Peabody presided at the examination of candidates for admission to the bar, which is required to be held in open court. Meanwhile both judges still continued to be present at the general term; the only change in the aspect of the bench, arising from the fact that the seats of the two contestants (to borrow the judicial phrase) were placed at each extremity of the bench, instead of side by side as on the first memorable day. It was
only at these sessions of the court at general term that the other members of the bench, the bar, and both contestants came into direct contact, and their meetings sometimes gave rise to colloquies more animated than dignified, of which the following may serve as a specimen. “Of how many judges does this general term consist? Of three or four, sir?” said one of the counsel about to open the argument of a case, addressing the presiding judge, and looking directly at the four incumbents of the judicial bench. • Of three judges only," was the reply. Very well, then I'll address my argument to the three judges whom I think constitate the court," was the instant rejoinder.
But now a new arbiter appears. Judge Strong, of the second judicial district, who was for some cause holding court in New York, invites Judge Davies to take his place in that district, and thus on the 10th of March, at Brooklyn, Judge Davies for the first time, without fear of interruption and with no one to question his authority, donned the judicial costume. For this day, at least, he was every inch a judge.
The contest which has already lasted more than a month, now draws to a close. On the 17th of March, Mr. Peabody wrote to the two judges who signed the letter before mentioned, and declined, under all the cireumstances, and probably in accordance with their advice, acting any longer as judge ; proposing, as Mr. Davies would not consent to put himself again in the attitude of plaintiff, and permit him to hold the seat till the controversy was decided, and as Judge Cowles would not, or could not, by an understanding with Mr. Davies, take advantage of the opportunity allowed him by the Court of Appeals, to file an answer to the original suit, to become himself the prosecutor in a suit against Mr. Daries, to test his right to the seat of which he had held for a month a quasi occupation, and which by Judge Peabody's withdrawal he would, with the consent of all parties, occupy as a judge de facto.
His letter treated with considerable severity the conduct of all the parties to the dispute, both principals and accessories ; and commented upon the course of Judge Cowles in such a way as to call forth from him a very sharp reply, justifying himself, and handling without gloves (to borrow a phrase from the noble art) the other combatants. This was the last act of the solemn comedy.
Judge Davies now occupies the seat of justice, and is for a time, at least, the acknowledged dispenser and expounder of the law. It is, we believe, the first instance of an application of what may be called the doctrine of squatter sovereignty to the judicial office. We trust it may be the last. We ask our citizens to respect the judiciary; but they must be very careful to respect themselves. And can they be said to have done 80, in this instance ?
They permitted a man whom they had decided and publicly declared to be no judge, to occupy the seat, and perform the functions of a judge, to issue his commands and enforce their execution by the officers of the court for more than a month, without let or hindrance from any judge of the court, except the entry on the clerk's book, and the single act of Judge Clerke already mentioned
If John Smith or Patrick Killigan, (to put the pertinent question of a New York paper,) were once to do what Mr. Davies did for weeks, would it be endured for a moment? Clearly not, and yet if the judge ment of the court, entered upon its own records, is of any force, Mr. Davies had no more authority for his course than any other citizen of the state. If the original conclusion of the court was erroneous, and the judges upon further investigation had come to a different decision, it was clearly their duty to announce this change of opinion, and to refuse longer to recognize Mr. Peabody as their associate upon the bench, or to permit him to discharge the duties of a judge.
We fear that this must be set down as another instance of the danger of introducing the distracting element of politics into judicial discus sions.
It may also strengthen somewhat the arguments of those who, like ourselves, and, we are happy to believe, most of our neighbors, maintain that the best and safest tenure for judges is the old one of good behavior.
Notices of New Publications.
THE LAW or LANDLORD AND TENANT. Being a course of lectures delivered at the Law Institute, by JOIIN WILLIAM SMITH, late of the Inner Temple, barrister at law. With notes and additions by FREDERIC Philip Maude, of the Inner Temple, barrister at law. With notes and references to the American cases, by PHINEAS PEMBERTON Morris. Philadelphia : T. & J. W. Johnson. 1856.
The late Mr. Smith was admirably fitted for a commentator and lecturer upon legal subjects. He possessed a rare combination of powers which enabled him to be at once condensed and clear, comprehensive and eminently practical.
This new book, edited from notes of lectures delivered by Mr. Smith, possesses the substantial qualities which rendered his treatises deservedly famous, although it is perhaps a little less perfect in form than if the author had himself prepared it for the press. As a text book for students it is the best modern work we have seen, and deserves to be read as a sequel to the admirable title on Leases and Terms for Years, in Bacon's Abridgment, as bringing the subject down with equal clearness and precision, though with less fulness of learning, to the present time.
The notes, both English and American, are carefully prepared and useful, though perhaps a little too full. Still, however, the book is within a very reasonable compass. A single fault of the American edition we feel bound as purists to notice, and that is, that in citing the standard English reports, the editor invariably adds the book and page of the Philadelphia edition, thus :- Davis v. Eyton, 7 Bing. 154, (20 E. C. L. R. 77.1:) This mode of citation may be useful in recent cases, because the American collections have of late got control of the market, but we fancy that it will be of very little assistance to any member of the profession, wherever situated or however uninstructed, to add an explanation to a citation of Taunton, Bingham, or Adolphus & Ellis. This, however, is a trifle to the great substantial merits of the book, which withal is very well edited, as we have said. It is also excellently printed and bound, and is altogether a valuable addition to our legal literature.
A TREATISE ON THE LAW OF BILLS OF EXCHANGE, Promissory Notes, Bank Notes, Bankers Cash-notes, and Checks. By John BARNARD BYLES. Fourth American from the sixth London edition. With additional notes illustrating the law practice in this country. By Hon. GEORGE SHARSWOOD. Philadelphia : T. & J. W. Johnson. 1856.
Of Mr. Byles's book, as illustrated by the learned American editor, since it has gone through six editions in England and four in this country, it
cannot be necessary for us to say much, except that the new edition brings this standard work down to the present time. Written originally as a " plain and brief summary of the principal practical points relating to bills and notes," it has grown to be a treatise of more than five hundred pages, exclusive of Appendix. It has not yet, however, outgrown its usefulness, but remains the standard practical summary and book of reference for every-day use upon the subject.
Xnsolvents in Massachusetts.
Commencement of Name of Commissioner,
H. H. Chilson.
John M. Williams,
H. H. Chilson. 4,
John G. King.
Isaac Ame? Jao.
Josiah Rutter. March 26,
Charles Endicott. < 26, S
John W. Bacon.
H. G. Newcomb. Feb.
Joshua C. Stone. March
Thomas A. Parsons.
Isaac Ameg. 66 14.
John G. King. 663 Thomas A Parsons
John G. King 3,
John W. Bacon. < 28,
Alexander H. Bullock. 66 29,
John M. Williams. € 29,
John M. Williams. 56 15, John G. King. Dec. 20, 1855 H. G. Newcomb. Feb 12, 1856, II. G Newcomb. March 6, Alexander Il. Bullock. 26,
John J. Russell. 22, John W. Bacon. 15,
John W. Bacon. 22, John W. Bacon. 18, Isaac Ames.
John G. King. 6, Alexander H. Bullock.
John G, King,
J. N. Dunham.
John G. King.
J. M. Williams.
John G. King. April 1, Perez Simmons.