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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 remove 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 ap pointment 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 his regret that the question came before him suddenly, at nisi prius, and not in bane, 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 express ly 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.

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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, has 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 served 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:

Resolred, 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

were adopted by both branches; and this seems to have been the first action taken by the house of representatives:

1. The president of the senate shall preside in the convention.

2. The respondent may be heard by himself and by counsel, if he shall so desire.

3. Any affidavits or written statements may be read as a part of the defence, and only such testimony shall be admitted.

4. No debate whatever shall be admitted in the convention.

5. No motion shall be submitted or entertained, except to take a recess to a time certain, or to dissolve the convention; and every such motion shall be decided without debate.

THE HEARING.

The constitution of Maine contains the following provision, (Art. IX. Sec. 5,) under which these proceedings were had:

"Every person holding any civil office under this State, may be removed, by impeachment, for misdemeanor in office; and every person holding any office may be removed by the governor, with the advice of the council, on the address of both branches of the legislature. But, before any such address shall pass either house, the causes of removal shall be entered on the journal of the house in which it originated, and a copy thereof served on the person in office, that he may be admitted to a hearing in his defence."

At the hearing before the two houses assembled in convention, Judge Davis put in the following protest and

answer:

PROTEST.

In a joint convention of the members of the two branches of the Legislature of Maine, April 5th, 1856, for the purpose of admitting Woodbury Daris. one of the Justices of the Supreme Judicial Court, to a hearing in his defence upon certain charges against him, entered upon the Journal of the Senate, March 19th, 1856:—

And now the said Woodbury Davis appears, and respectfully represents, that this convention is not duly constituted under any provision of the constitution of this State, and that a "hearing" before this body is not such a "hearing" as he is entitled to, by the said constitution-and further, that the adoption of an "address" for his removal from office by the governor and council for the causes aforesaid, is contrary to the provisions of said constitution:- and further, that said causes of removal have been stated, and entered upon the journal of the senate, and the day for a "hearing" assigned, and the notice thereof given to him, by order of the senate alone, without any concurrent action thereon, on the part of the house of representatives; and further, that he has received no notice for any hearing" before this convention, nor have both branches of the legislature agreed upon, and stated the causes of removal aforesaid, upon which he is to be heard. Wherefore, availing himself of the opportunity to be heard, which is now offered to him, he waives no

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objection to the proceedings aforesaid, but protests that they are not such as the constitution of the State requires, and prays that this protest may be entered upon the journals of the senate. WOODBURY DAVIS.

ANSWER.

In a joint convention of the members of the two branches of the Legislature of Maine, April 5th, 1856. for the purpose of admitting Woodbury Davis, one of the Justices of the Supreme Judicial Court, to a hearing in his defence upon certain charges against him entered upon the Journal of the Senate, March 19th, 1856

And now the said Woodbury Davis, adhering to his protest already presented, and relying upon the same, and waiving no objections to the proceedings named in said protest, in answer to the charges aforesaid against him, says as follows, viz:

That it is not true that he, " 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 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," except that he, the said Woodbury Davis, at said terms of court, (Seward M. Baker being employed and claiming still to be employed as the officer of the court,) upon the application of the said Daniel C. Emery to be employed by the court to execute the orders and precepts thereof, to the exclusion of said Baker, not being of the opinion that said Emery was duly authorized to act in the premises, the said Woodbury Davis did decline to employ him to execute the same. And the said Woodbury Davis does not admit that said "Daniel C. Emery has been duly appointed as the sheriff of said county," and he denies that the legislature has any authority under the constitution of this State, to determine this question for any other department of the government.

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And the said Woodbury Davis, answering further, says, that at neither of said terms of court did he issue, or "undertake to issue," any "precept of said court," to be executed by any person as sheriff of said county." But he admits that, being satisfied that Seward M. Baker was duly authorized to act as sheriff of said county, and the said Baker claiming the privilege of being employed by the court, he did employ said Baker in the transactions of the business of said court; and he denies any authority on the part of the legislature to determine for any other department of the government that said Baker “had been lawfully removed from that office.

And the said Woodbury Davis answering further says, that he has been informed and believes that before the criminal term of said court held in said county of Cumberland, in the month of March, the said D. C. Emery took possession of the jail in said county by force, and appointed a keeper thereof, into whose custody he committed the prisoners in said jail. But it is not true that he, the said Woodbury Davis did remove, or undertake to remove said prisoners from jail by proceeding not warranted by law." On motion of the county attorney he sent an officer in attendance upon said court with verbal orders to bring said prisoners into court that they might answer to the indictments therein pending against them. And the keeper of the jail having refused thereupon to send said prisoners into court, the clerk of the said court was directed to issue a capias to said officers for said prisoners, therein directing

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