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 indicial bench. "Of three judges only," was the reply. Very well, then I'll address my argument to the three judges whom I think constitute 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. Davies, 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 so, 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 judgment 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 discussions. 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 OF LANDLORD AND TENANT. Being a course of lectures delivered at the Law Institute, by JOHN 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.) 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. THE MONTHLY LAW REPORTER. JUNE, 1856. THE REMOVAL OF JUDGE WOODBURY DAVIS. "AN elective despotism," said Mr. Jefferson," is not the government we fought for." Is an elective despotism the government we are coming to? Serious doubts as to the answer to this question are suggested by the late proceedings of the legislature and executive of Maine, for the removal from office of the Hon. Woodbury Davis, one of the judges of the Supreme Court of that State. The case seems to have been originated, managed and decided as a political party question; but no party can control its effects, or limit to itself the consequences of the decision. If it were at all a question of political party, it would not be entitled to a place in the pages of a journal of judicial science; but, as it is solely a question of fundamental law, it should be understood and earnestly reflected upon by all members of our profession, and by all citizens. Avoiding, therefore, every allusion to its connection with politics, and in a spirit of indifference to its party consequences, the attention of the professional reader is invited to a condensed history of the case. HISTORY OF THE CASE. At a nisi prius term of the Supreme Court of Maine, held within and for the county of Cumberland, in January, 1856, by the Hon. Woodbury Davis, a question arose which of two persons claiming the office was the lawful sheriff of VOL. IX. -NO. II. NEW SERIES. 6 |