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18,

18,

25,

14,

Peaslee, Joseph (d)

Boston, Penniman, Adna L.

Chelsea, Putnam, Alfred M.

Dunvers, Raddin, Nelson

Lynn, Reynolds, Moses C. (k)

Salem, Richmond & Almy, (a) New Bedford, Richmond, Anthony D. jr. (a) New Bedford, Sanford, Calvin

Barre,
Sanger, George F. (k)

Salem,
Seavey, Eben (e)
Sibley, Moses H.

Salem,
Sloan, Joseph W.

Dorchester, Smith, Henry

Dedham, Smith, Joseph B.

Newton, Southwick, Erastus S.

Shutesbury, Spring, Luther 2d.

Worcester, Tenny, Daniel

Sutton, Thayer, Ebenezer T E. Braintree, Townsend, Joseph A.

Lynnfield, Turner, James

Haverhill, Twichell, Daniel

Northfield, Wait, James H.

Orange, Wason, Robert

Charlestown, White, Charles H.

Charlestown, White, Joseph

Adams, Whitman, James W.

Charlemont, Wilkins, Frederick A. (

Chelsea, Youngman, David

Winchester,

Mar. 19, 1856. Isaac Ames.
"S 26, John M. Williams.
20. John G. King.

John G King. 25, John G King. Feb.

Joshua C. Stone.

Joshua C. Stone. March

Alexander H. Bullock.

John G. King.
29, John M. Williams.

John G King.
26, Charles Endicott.

Charles Endicott.
Feb.
18,

Josiah Rutter. Mar. 25, H. G. Newcomb. 14, Alexander H. Bullock.

Alexander H. Bullock.
William L. Walker.
John G. King.
Thomas A Parsons.
H. G Newcomb.
A. G. Newcomb.
John W. Bacon.
John W. Bacon.
J N. Dunham.
HG Newcomb.
Isaac Ames.
John W. Bacon.

(a) Richmond & Almy, “as copartners and individually."
(6) Bettis & Palfray, Salem. “ Proceedings suspended.”
(c)s W. Chandler and Brotber. “Businoss in Boston."
(d) Peaslee & Drake.
(e) Goodrich, Sea ey & Co. “ Business in Boston."
($) Howe & Harrington.
(8) Holt & Hastings.
(h) Kelsey & Hawkes.
(1) Johnson & Wilkins.
(3) D. W. Manning & Co. "Jointly and severally.”
(k) Sanger & Reynolds.

*** The name of Zenas Hawkes, published in the April number, should have been rendered Amos Hawkes.

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 condeused 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.

the county, Seward M. Baker was in occupation of the office under an old commission, which, by its terms, had not expired, and did the duties of sheriff during the first week of the term. At the end of the week, Mr. Daniel C. Emery and his counsel called upon Judge Davis at his chambers, and informed him that Mr. Emery had received a commission and qualified under it, and should claim the right to perform the duties of sheriff, on Monday. Judge Davis expressed his wish that the case should be presented to the full bench, and his reluctance to pass upon it at nisi prius; but Mr. Emery and his counsel thought proper to present the question to the judge, and it was understood that it would be so presented on Monday morning. Accordingly, on Monday, January 21st, Mr. Emery appeared in court, presented his commission, and his claim to this office was argued by Judge Howard and the Hon. Nathan Clifford in his behalf. They contended that the executive had the right to rernove the incumbent and appoint a new sheriff, and that the judge must, from the necessity of the case, pass upon the question. At the close of their arguments, no argument being made in behalf of the incumbent, Judge Davis, alluding to the newness of his own position on the bench, and the longer professional experience of several members of the bar present, invited suggestions from the bar. His invitation was responded to by Hon. Samuel Fessenden, who controverted the positions of Mr. Emery's counsel, and contended that the governor had no power, under the amended constitution, to make the removal and appointment in question. The doubt arose upon the effect of an amendment of the constitution, recently adopted by the people. Before the amendment, sheriffs were appointed and removed by the governor. The amendment made them elective, and expressly took away the power of appointment from the governor, except in case of vacancies. The time for an election had not arrived. It was urged on behalf of Mr. Emery, that the amendment, though adopted by the people, and passed upon by the governor and council, had not become a part of the constitution when the governor issued the commission. And, if it had become a part of the constitution, yet, as the time for an election had not arrived, and no officer had been elected, the effect of the adoption of the amendment was either to create a vacancy at once, or to leave the officers under the power of the executive as before, until the election. It was replied that the amendment was in full operation when the gov.

ernor issued the new commission, and that he could not, under that amendment, create “a vacancy” within the meaning of the amendment, by merely issuing a new commission; and that the adoption of the amendment did not of itself create vacancies in the offices it affected, but left the old commissions alive until the new officers should be elected, and in terms took from him the appointing power, except in those cases. There was no question of fact in issue between the parties, and Judge Davis, after expressing bis regret that the question came before him suddenly, at nisi prius, and not in banc, admitted the necessity he was under, from the nature of case, to determine which of the two claimants he should recognize as sheriff, and gave his decision in favor of the incumbent, Mr. Baker. He Limited his decision within the closest possible bounds, deciding only that he should, under the present circumstances, as at present advised, recognize and employ the incumbent as the lawful sheriff for the purposes of the court, and expressly refusing to pass upon the general question of title and the validity of the commission, beyond that. No opposition was offered to this decision, no appeal taken, and no •steps to bring the question before the full bench, by mandamus, quo warranto, or otherwise.

The March term of the court for the same county, for criminal trials, was held by Judge Davis. In the interval, Mr. Emery obtained possession of the jail by force, and appointed a keeper of the prisoners. When it became necessary for the prisoners to be produced, on motion of the county attorney, the judge, in the usual manner, sent an officer in attendance, with verbal orders to have the prisoners produced. The keeper refused to obey the order, and the judge then issued a capias to an officer, commanding him to bring the prisoners, and directing the keeper of the jail to deliver them to him. This precept the keeper complied with, and no further difficulty arose during the term.

The legislature of Maine assembled soon after, and on the 19th day of March, the senate passed the following resolves:

RESOLVES AND CHARGES.

STATE OF MAINE.

In SENATE, March 19th, 1856. } Resolved, That the Senate, after due notice given according to the constitution, will proceed to consider the adoption of an address to the governor, for the removal of Woodbury Davis, one of the Justices of the Supreme Judicial Court, for the causes following:

· Because the said Woodbury Davis, at the terms of the Supreme Judicial Court, holden by him for the County of Cumberland, in the month of January last, and in the present month of March, has refused to recognize the official authority and privilege of Daniel C. Emery, who had before been duly appointed, commissioned, and qualified, as the sheriff of said county, and then held that office :

Because the said Woodbury Davis in his capacity of judge, bas assumed, without legal issue or judicial trial thereof, to deny the lawful and actual validity of the commission issued to the said sheriff, under the hand of the governor, and the seal of the State:

Because the said Woodbury Davis, not regarding the lawful and actual custody, held by the said sheriff of prisoners, confined in the jail of said county for trial at the present term of said court, has undertaken to remove said prisoners from jail, and has removed them by proceeding not warranted by law:

Because the said Woodbury Davis, at the times aforesaid, has recognized as the sheriff of said county, another person who had before been lawfully removed from that office, and has undertaken to issue the orders, and the precepts of the said court, to be executed by the person who has been so removed from office:

All of which acts and proceedings are and have been open and notorious, and are persisted in hitherto :

Because the continuance of such acts, proceedings, and assumptions of the said Woodbury Davis tends to produce insubordination, confusion, and violence; is of dangerous and pernicious example ; confounds the distribution of the powers of government; and tends to the subversion of the actual, constituted, and lawful authority of the State :

Resolved, That these resolutions and statements of causes of removal .be entered on the journal of the senate; and that a copy of the same be signed by the president of the senate, and scrved upon the said Woodbury Davis, by such person as the president of the senate shall appoint for that purpose, who shall make return of such service upon his personal affidavit, without delay; and that Friday, the 28th day of the present month, at nine o'clock in the forenoon, be assigned as the time when the said Woodbury Davis may be admitted to a hearing in his defence.

On the 31st day of March, the following resolves were offered in the senate, and referred to a joint committee of the two houses :

Resolved, That certain charges against Woodbury Davis, having been entered on the journal of the senate, as causes why he ought to be removed from the office which he holds, as one of the justices of the Supreme Judicial Court, it is incumbent on the senate, in the first instance, to establish the truth of such charges, by legal proofs :

Resolved, That for this purpose there be appointed by the chair a committee of three, with power to send for persons and papers, and take all necessary testimony relating to the case ; and that said committee be instructed to summon such witnesses, at the request of said Woodbury Davis, as shall be essential to enable him to prove such facts as may be deemed by him necessary for his defence; and that said committee give the said Woodbury Davis due notice of the time and place of their meeting, for the purposes aforesaid.

The joint committee reported the following rules, which

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